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Lilley v. Smith

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

April 5, 2017

CHESTER LILLEY, Plaintiff,
v.
PAULA SMITH, MRS. HARRIS, and DR. MATEAKIO, Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         Plaintiff, 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).

         A. Motions to Appoint Counsel

         Plaintiff 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 DENIED.

         B. Motion for Copies

         Plaintiff 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.

         C. Motion for Injunctive Relief

         Plaintiff 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).

         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. 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 DENIED.

         D. Motion for a Trial

         Plaintiff 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.

         E. Motion to Compel

         Plaintiff 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 for ...


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