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Nunn v. N.C. Legislation

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

December 22, 2014

MYRON RODERICK NUNN, Plaintiff,
v.
N.C. LEGISLATION, FRANK L. PERRY, GEORGE T. SOLOMON, FINESSE COUCH, TODD PINION, ROBERT JONES, BELINDA DUDLEY, RICHARD NEELY, DEAN LOCKLEAR, TIM CURLY, ROBERT WILLIAMS, JAMES HOLMES, ANGIE BENGE, JEFF WILKERSON, MRS. CAMERON, MR. SANDERS, MR. MCCLAIN, DR. MILTON D. WESTBERG, and NURSE NELSON, Defendants.

ORDER

LOUISE W. FLANAGAN, District Judge.

Plaintiff, a state inmate, filed this civil rights action pro se pursuant to 42 U.S.C. § 1983. The matter is before the court for frivolity review pursuant to 28 U.S.C. § 1915. Also before the court are plaintiff's motion for jail time credits (DE 5), motions to amend (DE 7, 17, 22), motion to appoint counsel (DE 16), motion to consolidate (DE 18), motion for voluntary dismissal (DE 18), motion to withdraw motion to voluntarily dismiss (DE 20), and motion for emergency injunction and for production of documents (DE 21). The issues raised are ripe for adjudication.

A. Motions to Amend and Motions Regarding Voluntary Dismissal

Plaintiff filed three motions to amend his complaint. Plaintiff subsequently moved to voluntarily dismiss certain claims pursuant to Federal Rule of Civil Procedure 41(a), and then to reinstate those claims. The court ALLOWS plaintiff's first motion to amend as a matter of course. See Fed.R.Civ.P. 15(a); Scinto v. Stansberry , 507 F.Appx. 311, 312 (4th Cir. 2013). As explained in more detail below, plaintiff's filings are unclear and the court directs that he particularize his action. Thus, plaintiff's remaining motions to amend, motion for voluntary dismissal, and motion to withdraw his motion for voluntary dismissal are DENIED as FUTILE.

B. Motion for a Temporary Restraining Order

The court construes plaintiff's motion for injunctive relief as a request for a temporary restraining order.[1] See Watson v. Garman, No. 7:12-cv-00037 , 2012 WL 664066, at *1 (W.D. Va. Feb. 29, 2012) (construing motion for a preliminary injunction as one for a temporary restraining order where the defendants have not yet been served). Temporary restraining orders are governed by Rule 65 of the Federal Rules of Civil Procedure, which provides that a temporary restraining order shall not issue in the absence of "specific facts... [which] clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed.R.Civ.P. 65(b)(1)(A). 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).

Here, plaintiff has not demonstrated that he likely is to succeed on the merits, nor has he alleged facts necessary to demonstrate that he likely would suffer irreparable harm if his motion is not granted. Finally, plaintiff has not demonstrated that his request for a temporary restraining order is in the public interest or that the balance of equities tips in his favor. Accordingly, plaintiff's motion for a temporary restraining order is DENIED.

C. Motion to Appoint Counsel

The court now turns to plaintiff's motion to appoint counsel. 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."). Because plaintiff's claim is not complex, and where he has demonstrated through the detail of his filings he is capable of proceeding pro se, this case is not one in which exceptional circumstances merit appointment of counsel. Therefore, plaintiff's motion to appoint counsel is DENIED.

D. Motion to Consolidate

Plaintiff requests that the court consolidate the instant action with another civil rights action that plaintiff previously filed and which is pending in this court, Nunn v. Matthews, No. 14-CT-3150-D (E.D. N.C. filed June 12, 2014). Federal Rule of Civil Procedure 42(a) provides: "If actions before the court involve a common question of law or fact, the court may... consolidate the actions." The Fourth Circuit has held that a district court has "broad discretion under F. R. Civ. P. 42(a) to consolidate causes pending in the same district." A/S J. Ludwig Mowinckles Rederi v. Tidewater Constr. Corp. , 559 F.2d 928, 933 (4th Cir. 1977).

As discussed below, plaintiff's filings in this action are confusing and it is difficult to determine precisely the nature of plaintiff's claims. Accordingly, the court is unable to determine whether plaintiff's two pending actions involve common questions of law and fact. Thus, the court DENIES without prejudice plaintiff's motion to consolidate.

To the extent plaintiff believes that the instant action is similar to the action he filed in Nunn v. Matthews, No. 14-CT-3150-D (E.D. N.C. filed June 12, 2014), he may move to voluntarily dismiss this action without prejudice pursuant to Rule 41(a) to pursue his claims in the previously filed action. In the event plaintiff chooses to voluntarily dismisses this action, the court will vacate its August 19, 2014, order allowing plaintiff to proceed without the prepayment of the filing fee, and ...


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