McGowan v. Ruiz et al (TVV)

Filing 65

MEMORANDUM AND ORDER denying plaintiff's 58 motion for appointment of counsel and to compel discovery. Plaintiff's renewed motion for court ordered service of process 59 is GRANTED. The Warden of the Morgan County Co rrectional Complex is hereby ORDERED to provide the United States Marshals Service with the last known addresses of Correctional Officer George King and Correctional Officer W. Potter. The United States Marshals Service is in turn DIRECTED to pers onally serve copies of the summons and complaint upon Correctional Officer George King and Correctional Officer W. Potter at the last known addresses provided or wherever they may be found. Signed by Chief District Judge Thomas A Varlan on 8/10/15. (c/m and cc Warden of the Morgan County Correctional Complex) (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JOHNNY L. MCGOWAN, JR.,
Plaintiff,
v.
SHEILA RUIZ, et al.,
Defendants.

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No.

3:12-CV-263-TAV-CCS

MEMORANDUM AND ORDER
On May 31, 2012, Plaintiff filed a civil rights claim pursuant to 42 U.S.C. § 1983 against
twelve defendants associated with the Tennessee Department of Correction.

During the

pendency of this action all defendants except George King and W. Potter, whose process was
returned unserved based on the fact that neither individual still works at the Morgan County
Correctional Complex [Docs. 54, 55], have been served process. Before the Court now are
Plaintiff’s motions for appointment of counsel [Doc. 58], to compel discovery [Docs. 58], and to
ensure service of process on Defendant King and Defendant Potter [Doc. 59]. Those defendants
served with process (“Defendants”) have filed a joint memorandum in opposition to Plaintiff’s
motions for appointment of counsel and to compel discovery [Doc. 60]. Plaintiff has filed a
second memorandum in reply to the response [Doc. 61].
I.

MOTION FOR APPOINTMENT OF COUNSEL
Without citation to specific facts or circumstances in support of his motion, Plaintiff

requests the court appoint counsel to represent him in the current § 1983 action [Doc. 58 p. 1].
Defendants have filed a joint memorandum in opposition to such appointment based on the
simplicity of legal and factual issues presented [Doc. 60 p. 1].

The appointment of counsel in a civil case is a matter within the discretion of the Court.
Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987).

After careful consideration of

Plaintiff’s motions, including the type and nature of the case, its complexity, and Plaintiff’s
ability to prosecute his claim, this Court is of the opinion that counsel is not necessary at this
time to ensure Plaintiff’s claims are fairly heard. Mira v. Marshall, 806 F.2d 636 (6th Cir.
1986). Plaintiff’s motion for appointment of counsel [Doc. 58] is DENIED.
II.

MOTION TO COMPEL DISCOVERY
In addition to the forgoing, Plaintiff requests the Court issue an order compelling the

production certain requested information [Id.]. While he does not expressly designate which
prior requests he would like the Court to compel, Plaintiff has attached Defendants’ response to
his first request for production of documents and presumably seeks an order compelling the
production of all documents to which Defendants objected therein [Doc. 58-1]. Defendants
respond in opposition to the motion based on the fact that all of Plaintiff’s requests received an
answer, objection, assertion of lack of knowledge, or invocation of privilege [Doc. 60].
Specifically, Defendants objected to the production of Defendants’ arrest records on relevance
grounds [Doc. 58-1 ¶ 3], complete and exact copies of Defendants’ employee files on relevance
grounds [Id. ¶ 4], and complete and exact copies of Plaintiff’s institutional file and grievance
complaints based on over breadth and undue burden [Id. ¶ 5]. Defendants claim despite offers
“to provide documents from a specific time frame, or which were more narrowly tailored to the
issues . . . in this case, . . . Plaintiff did not attempt to provide revised requests” [Id.].
Rule 37(a) of the Federal Rules of Civil Procedure provides, on “notice to other
parties[,] . . . a party may move for an order compelling disclosure or discovery.” Fed. R. Civ. P.
37(a). As a prerequisite to any such order however, a movant must “include [in his motion] a
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certification that the movant has in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain it without court action.” Id.
Because he has failed to append any such certificate or affidavit, Plaintiff’s motion to compel
discovery is DENIED.
III.

MOTION TO ENSURE SERVICE OF PROCESS
Plaintiff’s motion to ensure service of process [Doc. 59] is the third in a series of such

motions filed to effectuate process on the twelve named defendants. After an initial attempt at
service, the Court granted Plaintiff’s original “motion for assistance” by directing the Clerk to
issue alias summons for the five defendants left unserved [Doc. 36]. While Defendant Foster
and Defendant Auger subsequently returned executed summons [Docs. 42, 43], Defendant
James, Defendant King, and Defendant Potter’s process was returned unexecuted for a second
time [Docs. 39, 40, 41]. In response to the unexecuted returns, the Court granted Plaintiff’s
renewed motion for court ordered service of process [Doc. 52]. Defendant James’s summons
was executed [Doc. 53], but Defendant Potter’s and Defendant King’s summons were returned
unexecuted for a third time; both listing “no longer works at Morgan County” as the reason for
their return [Doc. 54 p. 1; Docs. 55 p. 1].
Based on the forgoing, Plaintiff’s renewed motion for court ordered service of process is
GRANTED. The Warden of the Morgan County Correctional Complex is hereby ORDERED to
provide the United States Marshals Service with the last known addresses of Correctional Officer
George King and Correctional Officer W. Potter. The United States Marshals Service is in turn
DIRECTED to personally serve copies of the summons and complaint upon Correctional

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Officer George King and Correctional Officer W. Potter at the last known addresses provided or
wherever they may be found.
IT IS SO ORDERED.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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