Carter v. Western Regional Jail et al

Filing 13

MEMORANDUM OPINION AND ORDER OF FIRST DISCOVERY STATUS CONFERENCE denying, without prejudice, Plaintiff's Motion for the Appointment of Counsel; granting Plaintiff's oral motion to amend the complaint; directing the Clerk of Court to prepar e a summons and copies of the complaint and this Order for Correctional Officer Gary Lambert and Correctional Officer Matthew Berlin and directing the United States Marshals Service to effect service of process on each named Defendant; directing Defe ndant Western Regional Jail to provide the Clerk with the most recent addresses of the named Defendants upon the Clerk's request; directing Plaintiff to file with the Clerk a list containing the names of all witnesses/participants to the alleged assault of Plaintiff, a list of his medical and out-of-pocket expenses, as more fully set forth herein, by 11/14/2014; Defendant Western Regional Jail shall serve Plaintiff with a list of the correctional officers on duty on 10/17/2012 and with copies of their photographs, if available, and additional materials, as more fully set forth herein, by 10/31/2014. Signed by Magistrate Judge Cheryl A. Eifert on 10/16/2014. (cc: Plaintiff, attys; any unrepresented party) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
KENNETH CARTER,
Plaintiff,
v.

Case No.: 3:14-cv-25636

WESTERN REGIONAL JAIL; and
CORRECTIONAL OFFICERS JOHN DOES,
Defendants.

MEMORANDUM OPINION AND
ORDER OF FIRST DISCOVERY STATUS CONFERENCE
On October 16, 2014, the Court held an initial status conference in the abovestyled civil action. Plaintiff appeared via teleconference from the Mount Olive
Correctional Complex, and Defendant Western Regional Jail appeared by counsel, Tim
J. Yianne. After hearing from Plaintiff and counsel for Defendant, the Court ORDERS
as follows:
1.

Plaintiff’s Motion for the Appointment of Counsel, (ECF No. 2 at 5), is

DENIED, without prejudice. Although the Court may, in its discretion, request an
attorney to represent Plaintiff in this § 1983 action, he has no constitutional right to
counsel. 28 U.S.C. § 1915(e)(1) (2010); see also Hardwick v. Ault, 517 F.2d 295, 298
(5th Cir. 1975). The United States Court of Appeals for the Fourth Circuit has made it
clear that the appointment of counsel in civil actions “should be allowed only in
exceptional cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). Whether
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sufficiently remarkable circumstances exist to justify pro bono representation depends
on the complexity of the claims and the ability of the indigent party to present them.
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984); see also Branch v. Cole, 686
F.2d 264, 266. (“[N]o comprehensive definition of exceptional circumstances is
practical. The existence of such circumstances will turn on the quality of two basic
factors-the type and complexity of the case, and the abilities of the individuals bringing
it.” (footnote omitted)). Here, Plaintiff fails to present evidence or argument supporting
the conclusion that his case meets the high threshold necessary for the appointment of
counsel. To the contrary, Plaintiff offers no rationale supporting the assignment of pro
bono counsel. The Court has examined the record and finds that the claims asserted by
Plaintiff are simple, and he is quite capable of presenting them. Therefore, the
circumstances do not justify the appointment of counsel at this time.
2.

Plaintiff’s oral motion to amend the complaint is GRANTED. The

following individuals shall be added as named Defendants: Correctional Officer Lambert
and Correctional Officer Berlin. The Clerk of Court is ORDERED to prepare a
summons and copies of the complaint and this Order for Correctional Officer Gary
Lambert and Correctional Officer Matthew Berlin, and the United States Marshals
Service is ORDERED to effect service of process on each named Defendant. Pursuant
to Federal Rule of Civil Procedure 4(e) and 4(h) and West Virginia Rule of Civil
Procedure 4(d), the Marshals Service may elect to effect service by mailing the summons
and complaint to each defendant by certified mail, return receipt requested, and
delivery restricted to the addressee. Defendant Western Regional Jail is ORDERED to
provide the Clerk with the most recent addresses of the named Defendants upon the
Clerk’s request.
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3.

To begin the discovery process, the parties are ORDERED to do the

following:
a.

On or before November 14, 2014, Plaintiff shall file with the Clerk a list
containing the names of all witnesses/participants to the alleged assault of
Plaintiff at the Western Regional Jail and all witnesses who otherwise have
relevant information related to Plaintiff’s claims and damages. To the
extent that Plaintiff does not know the name of a witness, Plaintiff, to the
best of his ability, shall provide a description of the witness. Plaintiff shall
also include a short description of the information he believes each listed
witness can provide.

b.

On or before November 14, 2014, Plaintiff shall file with the Clerk a list
of his medical and out-of-pocket expenses incurred as a result of the
alleged assaults. Plaintiff shall also describe his claimed injuries.

c.

Upon receipt of a medical records release form from Mr. Yianne, Plaintiff
shall sign the release form and return it to Mr. Yianne. Counsel shall
provide Plaintiff with copies of all medical records obtained through the
use of the medical records release.

d.

On or before October 31, 2014, Defendant Western Regional Jail shall
serve Plaintiff with a list of the correctional officers on duty on October 17,
2012 and with copies of their photographs, if available, to assist Plaintiff in
identifying his other alleged attackers.

e.

Defendant shall immediately secure and retain copies of any and all
documents, including videotapes, relevant to (1) the alleged assault on
Plaintiff on October 17, 2012; (2) any subsequent investigation of the
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assault; (3) an investigation of any of the Defendants related to their
actions or performance at the Western Regional Jail; (4) disciplinary
proceedings or matters involving any of the Defendants; (5) Plaintiff’s
inmate file including grievance forms and responses; and (6) institutional
policies and procedures regarding the use of force by correctional officers
at the Western Regional Jail.
f.

On or before November 14, 2014, Defendant shall produce the
following materials to Plaintiff: any and all documents, including
videotapes, pertaining to (1) the alleged assault of Plaintiff at the Western
Regional Jail; (2) any subsequent investigation of the assault; (3)
disciplinary proceedings or matters involving Defendants Lambert and
Berlin as a result of Plaintiff’s alleged assault or other inmate assaults; (4)
Plaintiff’s inmate file from the Western Regional Jail and the Tygart Valley
Regional Jail, including grievance forms and responses, and any other
documents involving Plaintiff, or between Plaintiff and Correctional
Facility Authority Personnel; and (5) photographs of Plaintiff taken before,
during, or after the assault. To the extent that Defendant withholds
relevant information under a claim of privilege or other protection,
Defendant

shall

provide,

contemporaneously

with

the

document

production, a privilege log that fully complies with the Federal Rules of
Civil Procedure. Counsel for Defendants has agreed to tender an Agreed
Protective Order to the Court for entry. Plaintiff granted defense counsel
permission to sign the Order on Plaintiff’s behalf. All documents marked
confidential, and all of Plaintiff’s medical records, shall be subject to the
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protective order. All future parties to this litigation shall be bound
by the terms and conditions of the protective order.
The Court shall issue a Scheduling Order after the newly added defendants have
been served with the complaint and have filed an answer or otherwise responded to the
complaint. A discovery status conference will also be scheduled at that time.
Pursuant to this Court’s Local Rules, Plaintiff is responsible for
notifying the Clerk of Court of any change in his address or other contact
information.
The Clerk is instructed to provide a copy of this Order to Plaintiff, any
unrepresented party, and counsel of record.
ENTERED: October 16, 2014.

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