Godfrey v. Faulkner et al

Filing 162

ORDER overruling Defendant's objection and request for reconsideration 145 ; denying 130 Motion to Appoint Counsel ; denying 136 Motion to Appoint Counsel ; denying 146 Motion for clarification ; denying 150 Prisoner Miscellaneous Motion for an "MRI". Signed by Judge Norman K. Moon on 4/14/2015. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
ALLEN LEE GODFREY, SR.
Plaintiff,
v.
OFFICER D. R. FAULKNER, ET AL.,
Defendants.

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Case No. 7:13CV00454
ORDER
By: Norman K. Moon
United States District Judge

After review of the record, it is now ORDERED as follows:
1.

Defendants’ objection and request for reconsideration (Docket No. 145) is
OVERRULED. After I denied summary judgment for some defendants and
allowed pretrial discovery, I granted plaintiff’s motion to amend to substitute
Officer Collins of the Roanoke City Police Department for the John Doe
defendant in the complaint who allegedly pulled off plaintiff’s pants after he was
in handcuffs. Defendants assert, with no reference to evidence in the record, that
plaintiff had no factual basis for naming Collins as a defendant, because Collins
did not arrive at the scene of arrest until after plaintiff was “in custody.” I find no
merit to defendants’ objection to the amendment.

2.

Defendants’ motion for clarification of the issues to be set for trial (Docket No.
146) is DENIED. Defendants express concern that I did not address plaintiff’s
claims that Officer Faulkner did not have probable cause to question Godfrey, to
pull him from his truck, or to arrest him. I find no such claims asserted in
Godfrey’s complaint.

3.

Godfrey’s motions for appointment of counsel (Docket Nos. 130 & 136) are
DENIED.

“[A] § 1983 litigant has no right to appointed counsel . . . .”1

McMillian v. Wake Cnty. Sheriff’s Dep’t, 399 F. App’x 824, 829 (4th Cir. 2010)
(unpublished) (citing Bowman v. White, 388 F.2d 756, 761 (4th Cir. 1968)).
Nevertheless, a district court may appoint counsel when “‘a pro se litigant has a
colorable claim but lacks the capacity to present it.’” Id. (quoting Whisenant v.
Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard
v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989)). Plaintiff states that he needs counsel
to conduct pretrial discovery under the timeline set in the pretrial scheduling
order, to choose and to cross-examine defendants’ witnesses. I find from review
of plaintiff’s pleadings and motions, however, that plaintiff has the capacity to
present his case, which rests on the parties’ differing versions of what happened
on the night of plaintiff’s arrest. If plaintiff believes that he needs a reasonable
extension of time to prepare for trial, he may so move. I will address separately
plaintiff’s motion for preparation of subpoenas.
4.

Plaintiff’s motion for an “MRI” (Docket No. 150) for use as evidence at trial is
DENIED. This motion asks the court to direct state prison officials to arrange for
plaintiff to have a “designated medical examiner/expert to conduct a[n] MRI/Full
body scan on plaintiffs back, left shoulder and both wrists, so plaintiff can present
these findings to the jury.”

Plaintiff’s right to access the court does not

encompass a right to require the court, the federal government, state prison

1

Plaintiff claims a right to counsel under Rule 6(a) of the Rules Governing § 2254 Cases, which requires
the court to appoint counsel for petitioner when a petition for a writ of habeas corpus under 28 U.S.C. § 2254 is set
for an evidentiary hearing. This rule has no application to plaintiff, who is pursuing a civil action under 42 U.S.C.
§ 1983, rather than a habeas corpus action.
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officials, or defendants to fund the costs of obtaining evidence plaintiff wishes to
develop to support his case. See Johnson v. Hubbard, 698 F.2d 286, 289 (6th Cir.
1983), abrogation on other grounds recognized by L & W Supply Corp. v. Acuity,
475 F.3d 737 (6th Cir. 2007) (noting that plaintiff’s right of access to the courts
does not obligate “a court to grant every party a perfect trial in all aspects”).
The Clerk is directed to send a copy of this order to plaintiff and to counsel of record for
defendants.
ENTER:

14th
This _____ day of April, 2015.

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