United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter comes before the court on the motion for reconsideration (DE 73) and motion for a protective order (DE 74) filed by defendants Demetrius Clark ("Clark"), Donald L. Whidbee ("Whidbee"),  Tommy F. Castello ("Castello"), Reginald Russell ("Russell"), and Gail H. Boyd ("Boyd"). Both motions were fully briefed. Also before the court are plaintiff's unopposed motion to appoint counsel (DE 76) and motion for a preliminary injunction (DE 77). In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants in part and denies in part defendants' motion for reconsideration, denies plaintiff's motions, and denies as moot defendants' motion for a protective order.
STATEMENT OF THE CASE
On October 17, 2011, plaintiff brought this action pursuant to 42 U.S.C. § 1983 against defendants asserting Eighth Amendment violations based on the interference of defendants Clark, Whidbee, Russell, Boyd, and John Doe with plaintiff's ability to receive his special diet food tray. In particular, plaintiff states that these defendants directed that he remain seated at meal time while awaiting his special diet tray. Plaintiff states that he could not comply with defendants' direction due to a medical condition and was forced to leave the dining hall without eating. Plaintiff also alleges that Castello confiscated his date book and that Boyd denied plaintiff four meals because plaintiff shared food with other inmates.
On May 10, 2013, defendants filed a motion for judgment on the pleadings pursuant to Rule 12(c), arguing that plaintiff's claim should be dismissed because he failed to exhaust his administrative remedies before filing this action. The motion was fully briefed. On November 12, 2013, the court entered an order denying defendants' motion.
On November 20, 2013, defendants filed a motion for reconsideration and a motion for a protective order, which were fully briefed. Plaintiff also filed a motion to appoint counsel and a motion for a preliminary injunction.
A. Motion to Appoint Counsel
The court first addresses plaintiff's motion to appoint counsel. In his motion to appoint counsel, plaintiff requests counsel to assist him with litigating this action. There is no constitutional right to counsel in civil cases, and courts should exercise their discretion to appoint counsel for pro se civil litigants "only in exceptional cases." Cook v. Bounds , 518 F.2d 779, 780 (4th Cir. 1975). The existence of exceptional circumstances justifying appointment of counsel depends upon "the type and complexity of the case, and the abilities of the individuals bringing it." Whisenant v. Yuam , 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Court for the S. Dist. of Iowa , 490 U.S. 296 (1989) (quoting Branch v. Cole , 686 F.2d 264 (5th Cir. 1982)); see also Gordon v. Leeke , 574 F.2d 1147, 1153 (4th Cir. 1978) ("If it is apparent... that a pro se litigant has a colorable claim but lacks capacity to present it, the district court should appoint counsel to assist him.").
Plaintiff has demonstrated through the detail of his filings that he is capable of proceeding pro se. Additionally, plaintiff's claim is not complex and is not one in which exceptional circumstances merit appointment of counsel. Therefore, plaintiff's motion to appoint counsel is DENIED.
B. Motion for a Preliminary Injunction
Plaintiff requests that the court order North Carolina Department of Public Safety ("DPS") officials to return plaintiff's stored legal documents. The United States Supreme Court has stated that the movant must establish the following to obtain a temporary restraining order or a preliminary injunction: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 20 (2008).
Plaintiff failed to demonstrated that he likely is to succeed on the merits, and has not alleged facts necessary to demonstrate that he likely would suffer irreparable harm if his motion is not granted. More specifically, there is no evidence that plaintiff's lack of access to his legal materials has hindered his litigation in this action. Further, the public interest is best served if courts do not get involved with the daily operations of a prison, especially prior to the finding of a constitutional violation. See Florence v. Board of Chosen Freeholders of County of Burlington, ___ U.S. ___ , 132 S.Ct. 1510, 1517 (2012). Accordingly, plaintiff has not demonstrated that his ...