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McRath v. Daniels

United States District Court, E.D. North Carolina, Western Division

December 11, 2014

TROY JAY McRATH, Plaintiff,
v.
FAYE DANIELS, et al., Defendants.

ORDER

JAMES C. FOX, District Judge.

On April 29, 2014, Plaintiff[1] filed this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights. Compl. [DE-l]. Plaintiff has requested leave to proceed without prepayment of the full civil filing fee [DE-2]. The matter is now before the undersigned for frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B).

In reviewing an in forma pauperis application, a court "shall dismiss" any case that is "frivolous or malicious, " that "fails to state a claim on which relief can be granted, " or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). A case is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). It does not clearly appear from the face of the complaint that Plaintiff's claim is frivolous. Thus, the court will allow the case to proceed, and the Clerk of Court is DIRECTED to maintain management of Plaintiffs complaint.

Plaintiff has also filed a motion requesting the appointment of counsel [DE-8]. 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's claims are not particularly complex, nor do other exceptional circumstances exist. Furthermore, Plaintiff has demonstrated through his filings that he is capable of proceeding pro se. Accordingly, Plaintiffs motion for the appointment of counsel [DE-8] is DENIED.

In addition, Plaintiff has filed several motions, requesting a hearing "to determine the factual basis of his complaints" [DE-9] and the entry of a scheduling order [DE-7, 10]. Likewise, Plaintiff has also filed several discovery requests with the court. [DE-7]. The court notes that discovery materials are not to be filed unless by order of the court. Local Civil Rule 26.1(a). Moreover, these motions are premature given that Defendants have not been served with process. See Davidson v. Davis, No. 3:13-CV-590-FDW, 2014 WL 2696573, at* 5 (W.D. N.C. June 13, 2014). Accordingly, Plaintiffs remaining motions [DE-7, 9, 10] are DENIED.

Conclusion

The Clerk of Court is DIRECTED to maintain management of Plaintiffs complaint. Plaintiffs pending motions [DE-7, 8, 9, 10] are DENIED. Finally, the court further ORDERS as follows:

1. The clerk shall manage the action pursuant to Standing Order 14-SO-02.
2. If service on any Defendant pursuant to the standing order fails, the court DIRECTS the United States Marshal Service to make service pursuant to 28 U.S.C. § 1915(d).

SO ORDERED.


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