Braxton v. Young et al

Filing 71

ORDER denying Plaintiff's 34 MOTION to Appoint Counsel; denying 41 MOTION to Enter Circuit Court Order Into Evidence; and granting 52 Emergency MOTION for Preservation of all Records insofar as Plaintiff's motion is consistent with Harrah's general duty to preserve records that may be pertinent in this litigation. However, the undersigned makes no determination about whether the specific documents Plaintiff requests to be preserved, to the extent they exist, are relevant and discoverable in this action. Signed by Magistrate Judge Dwane L. Tinsley on 5/29/2020. (cc: counsel; any unrepresented party) (mk)

Case 2:18-cv-00585 Document 71 Filed 05/29/20 Page 1 of 3 PageID #: 480
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
ANTHONY JAMES BRAXTON,
Plaintiff,
v.

CIVIL ACTION NO. 2:18-cv-00585

LARRY E. HARRAH, et al.,
Defendants.

ORDER
Before this Court are the three motions filed by Plaintiff Anthony James Braxton
(“Plaintiff”) on December 2, 2019, and December 10, 2019. (ECF Nos. 34, 41, 52.)
Plaintiff first asks this Court to appoint him counsel to negotiate a settlement
agreement. (ECF No. 34.) Although a litigant in a civil matter such as this one “ha[s]
no constitutional right to counsel,” Underwood v. Beavers, 711 F. App’x 122, 123 (4th Cir.
2017) (per curiam), this Court “may request an attorney to represent any person unable
to afford counsel,” 28 U.S.C. § 1915(e)(1). Whisenant v. Yuam, 739 F.2d 160, 163 (4th
Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Court, 490 U.S. 296
(1989). “The decision to appoint counsel is committed to the district court’s discretion,
‘but it is an abuse of discretion to decline to appoint counsel where the case of an indigent
plaintiff presents exceptional circumstances.’” Evans v. Kuplinski, 713 F. App’x 167, 170
(4th Cir. 2017) (quoting Whisenant, 739 F.2d at 163). “[T]he existence of exceptional
circumstances turns on (1) the type and complexity of the case and (2) the capabilities of
the individual bringing it.”

Id. (citing Whisenant, 739 F.2d at 163).

To that end,

“[c]ounsel should be requested if it is apparent that a pro se litigant has a colorable claim

Case 2:18-cv-00585 Document 71 Filed 05/29/20 Page 2 of 3 PageID #: 481
but lacks the capacity to present it.”

Id. (alterations and internal quotation marks

omitted). In this case, as demonstrated by the fact that Plaintiff’s pro se complaint
survived the motions to dismiss filed by the defendants in this matter, and the fact that
Plaintiff is presently pursuing discovery from those defendants, Plaintiff appears capable
of prosecuting this action on his own behalf without the aid of counsel. Moreover, this
action, which is based on an allegedly unlawful search warrant and the allegedly wrongful
seizure of Plaintiff’s property, is neither so legally nor factually complex as to constitute
“exceptional circumstances” warranting the appointment of counsel.

As such, the

motion to appoint counsel (ECF No. 34) is DENIED.
Plaintiff next asks this Court to obtain and “enter into evidence . . . the whole
record” of Civil Action No. 17-p-45-h in the Circuit Court of Fayette County, West Virginia.
(ECF No. 41.) “This Court may properly take judicial notice of state court proceedings;
particularly, when such proceedings are ‘relevant and critical’ to the matter at issue.”
Wei-Ping Zeng v. Marshall Univ., No. 3:17-cv-03008, 2020 WL 372483, at *2 (S.D.W.
Va. Jan. 22, 2020) (quoting Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.
1989)); see Fed. R. Evid. 201. Therefore, if this Court determines that it is necessary to
consider the proceedings in the case referenced in Plaintiff’s motion, this Court may take
judicial notice of those proceedings notwithstanding Plaintiff’s ability to pay for obtaining
the record from the Circuit Court of Fayette County. However, it does not appear that
the proceedings need to be obtained and docketed in this case at this time. To that end,
Plaintiff’s motion (ECF No. 41) is DENIED.
Finally, Plaintiff requests an order directing Defendant Larry E. Harrah (“Harrah”)
to preserve documentation reflecting “civil forfeiture cases,” “civil forfeiture settlement
agreements,” “citizen complaints,” and “retention policies and practices” dating from
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2007 until the present. (ECF No. 52.) Plaintiff claims that Harrah planned to destroy
these records upon his retirement on December 31, 2019. (Id.) However, as of the date
this action was filed, if not before, Harrah was obligated to preserve any records relevant
to Plaintiffs’ claims. See In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299
F.R.D. 502, 511 (S.D.W. Va. 2014) (quoting Silvestri v. Gen. Motors Corp., 271 F.3d 583,
591 (4th Cir. 2001)). A failure to do so, if shown, may result in spoliation sanctions. Id.
Insofar as Plaintiff’s motion is consistent with Harrah’s general duty to preserve records
that may be pertinent to this litigation, the motion (ECF No. 52) is GRANTED.
However, in granting the motion, the undersigned makes no determination about
whether the specific documents Plaintiff requests to be preserved, to the extent they exist,
are relevant and discoverable in this action.
IT IS SO ORDERED.
The Clerk is DIRECTED to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:

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May 29, 2020