United States District Court, M.D. North Carolina
ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOE L. WEBSTER, Magistrate Judge.
Plaintiff, a prisoner proceeding pro se, seeks relief pursuant to Title 42, United States Code, Section 1983. This matter is before the Court on the following motions by Plaintiff: (1) a motion for appointment of counsel (Docket Entry 11); (2) a motion for a temporary restraining order and a preliminary injunction (Docket Entry 13); (3) a "motion" entitled "Pro-Se Motion Defendant Violating to Plaintiff's (TRO) Temporary Restraining Order" (Docket Entry 14); and (4) a motion for an "evidentiary hearing and subpoena of medical records and witness statements." (Docket Entry 16.) For the reasons that follow, Plaintiff's motions for appointment of counsel, for an evidentiary hearing and for a "violation" of a TRO will be denied and the Court will recommend that the motion for a TRO/preliminary injunction be denied.
On July 10, 2014, Plaintiff filed his complaint in the Eastern District of North Carolina. (Docket Entry 1.) Plaintiff alleges that he received improper medical care from Defendant following surgery performed at the University of North Carolina Medical Center in Chapel Hill, North Carolina. Because the subject of the action, the surgery and follow-up care, occurred in the Middle District of North Carolina, the action was transferred to this district on July 23, 2014. ( See Order Transferring Case, Docket Entry 6.)
Upon transfer to this district, Plaintiff was granted in forma pauperis status and on July 28, 2014 he was provided with blank summons forms which he was informed must be filled out for each defendant. ( See Docket Entry 8.) Plaintiff returned a completed summons for Defendant and a Summons was issued by the Clerk of Court on October 20, 2014. (Docket Entry 17.) An affidavit of service filed on December 23, 2014 indicates that Defendant was served by United States Mail on November 18, 2014. (Docket Entry 24.) On December 08, 2014 Defendant's attorney filed a notice of appearance. (Docket Entry 20.) Before Defendant was served, Plaintiff filed the motions which are presently before the Court.
Plaintiffs Motion for Appointment of Counsel
In his motion for appointment of counsel, Plaintiff requests the Court appoint a specific lawyer, Daniel Talbert, as his counsel. (Docket Entry 11 at 1.) "The Constitution does not compel the appointment of counsel in civil cases." Lowery v. Bennett, 492 F.App'x 405, 411 (4th Cir. 2012). However, this court may, within its discretion, appoint counsel for an indigent in a civil action. 28 U.S.C. § 1915(e)(1); Bowman v. White, 388 F.2d 756, 761 (4th Cir. 1968) (noting that appointment of counsel under section 1915 "is a privilege and not a right" and is "a matter within the discretion of the District Court."). The court may appoint counsel in § 1983 cases only when exceptional circumstances exist. Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). "Whether the circumstances are exceptional depends on the type and complexity of the case, and the abilities of the individuals bringing it.'" Lowery, 492 F.App'x at 411 ( quoting Whirenant 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)). "If it is apparent to the district court that a pro se litigant has a colorable claim but lacks the capacity to present it, the district court should appoint counsel to assist him." Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978).
Plaintiff here has not demonstrated that this is an exceptional case or that he lacks the ability to adequately present it. At this stage at least, it appears that there are no exceptionally complicated issues. In fact, it appears that Plaintiff is simply alleging a disagreement with his medical care, which in general is not a proper matter for a section 1983 claim. See Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975) (disagreements as to prescribed treatment between a prisoner and physician are not sufficient to state a constitutional claim, absent exceptional circumstances). Moreover, Plaintiff's submissions show that he is capable of representing himself in this matter. While, as he asserts, his confinement may present some challenges in litigating his claims, he has not demonstrated that he is unable to pursue his claims without counsel. Indeed, because Defendant was not served until November, the case is still in its early stages; Defendant obtained an extension of time in which to file his answer and the time to file the answer has not yet expired. See, e.g., Reeves v. Ransom, No. 1:10cv56, 2011 WL 4549144, at *8 (M.D. N.C. Sept. 29, 2011) ("[Defendant's inability to afford counsel and the effect of his imprisonment on his ability to litigate his case are insufficiently exceptional' to merit appointment of counsel.... Almost every prisoner bringing a § 1983 claim would be able to cite the same circumstances as plaintiff here, and so the Court can hardly consider these circumstances to be exceptional.'" (quoting Joe v. Funderburk, No. 8:06-119-GRA-BHH, 2006 WL 2707011, at *1 (D.S.C. Sept. 18, 2006)).
Plaintiff's motion for the appointment of counsel is therefore denied at this time without prejudice to it being raised later upon an adequate showing.
Plaintiffs Motion for Temporary Restraining Order/Preliminary Injunction
On August 6, 2014, Plaintiff filed a motion for a preliminary injunction and a temporary restraining order. As discussed previously, this motion was filed before Defendant was even served. The motion was not accompanied by a brief,  but it appears that Plaintiff is asking that Defendant not be involved in his future medical care and that in the event Plaintiff had another surgery he be kept in the hospital for 48 hours for observation.
The substantive standard for granting either a temporary restraining order or a preliminary injunction is the same. See e.g., United States Dept. of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 n. 1 (4th Cir. 2006). 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 may be heard in opposition." Fed.R.Civ.P. 65(b)(1)(A). The United States Supreme Court has stated that to obtain a temporary restraining order or a preliminary injunction, a movant must establish: (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); The Real Truth About Obama, Inc. v. Federal Election Comm., 575 F.3d 342, 345 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010). Injunctive relief, such as the issuance of a preliminary injunction, is an extraordinary remedy that may be awarded only upon a clear showing that the plaintiff is entitled to such relief. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); see also MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (a preliminary injunction is an "extraordinary remed[y] involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances.").
Here, Plaintiff has failed to make the requisite showing for preliminary injunctive relief. At this stage of the proceedings, the case is in its early stages and Defendant only filed a motion to dismiss on January 13, 2015. Thus, Plaintiff's claims remain theoretically plausible. He complains of specific examples of mistreatment in his medical care which occurred in March, 2014, but only vaguely asserts that he will require additional surgery, that he does not want Defendant to be involved in the surgery and that he wants a specific course of treatment. In fact, his later filing indicates that a subsequent surgery perhaps did take place, which might render the present motion for injunctive relief moot. In any event, Plaintiff has not made a "clear showing" that he is likely to succeed on the merits. Winter, 444 U.S. at 22. He has merely stated that Defendant provided inadequate medical care to him, that his constitutional rights have been violated, and he does not want Defendant to be involved in any of Plaintiff's future medical treatment. See Goodman v. Johnson, 524 F.App'x 887 (4th Cir. 2013) (in the context of prisoner medical care, the Constitution requires only that prisoners receive adequate medical care; a prisoner is not guaranteed his choice of treatment). To the extent that Plaintiff is alleging a claim for medical malpractice, such a claim is not cognizable under § 1983. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) ("Medical malpractice does not become a constitutional claim merely because the victim is a prisoner."); Miltier v. Beorn, 896 F.2d 848, 853 (4th Cir. 1990) (noting that mere negligence or malpractice does not violate the Eighth Amendment). The Court, without more, is unable to make a finding that Plaintiff is likely to succeed on the merits.
Plaintiff has also not shown that he will suffer irreparable harm if an injunction or TRO is not issued. While Plaintiff obviously disagrees with the treatment he has received, he has failed to allege any specific facts to demonstrate that he is likely to suffer irreparable harm if this Court fails to issue an order directing Defendant ...