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Gould v. Bertie County

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

February 26, 2015

ABDU-SALIM GOULD, Plaintiffs,
v.
BERTIE COUNTY, BERTIE MARTIN REGIONAL JAIL, BERTIE-MARTIN BOARD OF COMMISSIONERS, BERTIE COUNTY SHERIFF DEPARTMENT, and SOUTHERN HEALTH PARTNERS Defendants.

ORDER

LOUISE W. FLANAGAN, District Judge.

The matter comes before the court upon plaintiff's unopposed post-judgment motion to appoint counsel (DE 34), motion for recusal (DE 39), and pleading captioned "Fed. R. Civ. Pro. Rule 46; 12 Objecting to a Rule or Order etc. Local R. Civ. P. Rule 33.1 Forms of Interrogation Responses and Objections, " (DE 31), which the court construes as a motion to alter or amend this court's January 13, 2015, judgment pursuant to Federal Rule of Civil Procedure 59(e). See Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). In this posture, the issues raised are ripe for adjudication.

BACKGROUND

For ease of reference, the background portion of the court's January 13, 2015, order is as follows:

On March 3, 2014, plaintiff, a pretrial detainee, filed this action pursuant to 42 U.S.C. § 1983 against defendants Bertie County and Bertie County Regional Jail. Plaintiff subsequently filed three motions to amend his complaint, a motion for equitable tolling, and various other miscellaneous filings. On August 5, 2014, the court entered an order granting plaintiff's first motion, and conducted a frivolity review of plaintiff's original complaint and first amended complaint. As part of its frivolity review, the court dismissed as frivolous the Bertie Martin Regional Jail as a defendant, and notified plaintiff that his filings violated Federal Rule of Civil Procedure 8. Consequently, the court provided plaintiff the opportunity to file one amended complaint, and denied as moot plaintiff's remaining motions to amend, as well as plaintiff's motion for equitable tolling.
In response to the court's August 5, 2014, order, plaintiff filed two amended complaints. On September 18, 2014, the court entered an order notifying plaintiff that he failed to comply with the court's August 5, 2014, order's direction that he file one amended complaint. As a result, the court allowed plaintiff an additional opportunity to comply with the court's September 18, 2014, order by filing one amended complaint.
On September 24, 2014, plaintiff filed one amended complaint pursuant to 42 U.S.C. § 1983, naming Bertie County, the Bertie Martin Regional Jail, the Bertie County Sheriff's Department, Southern Health Partners, and representatives of the Bertie County Board of Commissioners as defendants.

On January 13, 2015, the court conducted a frivolity review of plaintiff's September 24, 2014, amended pleading pursuant to 28 U.S.C. § 1915(e)(2)(B). In its order, the court dismissed plaintiff's claims that an unidentified district court judge violated his rights pursuant to the First Amendment to the United States Constitution and that defendants acted with deliberate indifference to plaintiff's serious medical needs in violation of the Fourteenth Amendment to the United States Constitution. The court also dismissed plaintiff's challenge to his then pending North Carolina State criminal proceedings. Finally, the court dismissed the remainder of plaintiff's conclusory allegations for lack of factual support. The dismissal of plaintiff's action was without prejudice.

On January 15, 2015, plaintiff filed a pleading captioned "Memorandum" and on January 28, 2015, he filed a pleading captioned "Fed. R. Civ. Pro. Rule 46; 12 Objecting to a Rule or Order etc. Local R. Civ. P. Rule 33.1 Forms of Interrogation Responses and Objections." Also on January 28, 2015, plaintiff filed a notice of appeal.

On January 29, 2015, plaintiff filed a motion to appoint counsel. Finally, on February 11, 2015, plaintiff filed a motion for recusal.

DISCUSSION

A. Motion to Appoint Counsel

Plaintiff filed a motion requesting the court to appoint counsel to assist him with litigating this action. As stated, plaintiff filed a notice of appeal. A notice of appeal divests a district court's jurisdiction over a matter, while conferring jurisdiction on the court of appeals. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58-59 (1982) (per curiam) ("The filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the ...


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