United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
a state inmate, filed this civil rights action pro
se pursuant to 42 U.S.C. § 1983. The matter comes
before the court for frivolity review pursuant to 28 U.S.C.
§ 1915. The matter also is before the court on
plaintiff's motions to appoint counsel (DE 11, 27, 30,
35, 38, 43, 44), motion for copies (DE 12), motion for
injunctive relief (DE 17), motion for a trial (DE 29), motion
to amend (DE 37), and motion to compel discovery (DE 46).
Motions to Appoint Counsel
filed six motions 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 motions to appoint counsel are
Motion for Copies
requests a “file stamp copy of [his] case.” (DE
12). Plaintiff's motion is not a model of clarity. To the
extent he seeks copies of documents in the court record, such
documents are within the custody of the clerk of court's
office. Thus, plaintiff must make his requests directly to
the clerk's office along with payment, at the rate of
fifty cents (.50¢) per page, for copies of the any
documents he seeks. Based upon the foregoing, plaintiff's
motion is DENIED.
Motion for Injunctive Relief
requests that the court direct the North Carolina Department
of Public Safety to transfer him to Central Prison. The court
construes plaintiff's motion for injunctive relief as a
request for a temporary restraining order. 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).
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
plaintiff has not demonstrated that he likely is to succeed
on the merits. Notably, an inmate has no constitutional right
to choose his place of incarceration. See Meachum v.
Fanno, 427 U.S. 215, 225 (1976); see also,
Johnson v. Ozmint, 456 F.Supp.2d 688, 695 (D.S.C.
2006) (“Courts in the Fourth Circuit have long
recognized that the Constitution confers no protected liberty
interest upon inmates from being placed in a particular
prison or even in administrative segregation.”) (citing
Ajaj v. Smith, 108 F. App'x 743, 744 (4th Cir.
2004) (per curiam)). Rather, the North Carolina Department of
Public Safety has the discretion to designate an inmate's
place of incarceration. See Johnson, 456 F.Supp.2d
at 696. Plaintiff, additionally, has not 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
Motion for a Trial
requests that the court schedule a trial in this action. If a
trial is needed, the court will set a trial date at the
appropriate time. Plaintiff's motion to schedule a trial
is DENIED as PREMATURE.
Motion to Compel
filed a motion requesting that the court compel defendants to
respond to his discovery requests. The court has not yet
entered a case management order setting forth a time period