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Pompey v. Bell

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

April 28, 2017

JERMAINE POMPEY, Plaintiff,
v.
DR. RON BELL, KIMBERLY WYNN, KAY BECK, GEORGE W. BAYSDEN, JR., Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         The matter comes before the court on defendants' respective motions for judgment on the pleadings (DE 34) and motion to dismiss (DE 38) pursuant to Federal Rule of Civil Procedure 12. Also before the court is defendant's motion for summary judgment (DE 43) pursuant to Federal Rule of Civil Procedure 56(a), as well as plaintiff's motion to appoint counsel (DE 54), motion to compel discovery (DE 55), and motion for a more definite statement (DE 57). Defendants motions were fully briefed, but defendants did not respond to plaintiff's motions. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court rules as follows.

         STATEMENT OF THE CASE

         On December 21, 2015, plaintiff, a state inmate, filed this civil rights action pro se pursuant to 42 U.S.C. § 1983, naming George W. Baysden, Jr. (“Baysden”), Kay Beck (“Beck”), Ron Bell (“Bell”), and Kimberly Wynn (“Wynn”) as defendants. Plaintiff alleged that defendants Beck, Bell, and Wynn acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the United States Constitution. Plaintiff additionally alleged that defendant Baysden violated his constitutional rights in the course of plaintiff's disciplinary proceedings. Plaintiff subsequently filed a motion to appoint counsel. On May 20, 2016, the court conducted a frivolity review of plaintiff's action and allowed plaintiff to proceed. The court also denied plaintiff's motion to appoint counsel. Five days later, plaintiff filed a second motion to appoint counsel, which the court denied. The court then signed consent orders governing discovery and the disclosure of confidential documents which were filed by defendants Wynn and Bell. Plaintiff next filed a third motion to appoint counsel, which the court denied.

         On September 13, 2016, defendants Baysden and Beck filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) arguing that plaintiff failed to exhaust his administrative remedies and that plaintiff failed to state a claim. The motion was fully briefed. On September 19, 2016, defendant Bell moved to dismiss plaintiff's action pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiff failed to state a claim upon which relief may be granted. The motion was fully briefed. Plaintiff subsequently filed motions to appoint counsel, for a settlement conference, and to vacate the filing fee, which the court denied.

         In the interim, defendant Wynn filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(a) solely on the grounds that plaintiff failed to exhaust his administrative remedies for his claims against her prior to filing the instant action. Plaintiff additionally filed a Statement of Material Facts as well as an Appendix which included the affidavit of Finesse G. Couch-the Executive Director of the North Carolina Inmate Grievance Resolution Board. The motion was fully briefed. Plaintiff subsequently filed a motion to appoint counsel, motion to compel discovery, and a motion for a more definite statement.

         STATEMENT OF FACTS

         Plaintiff's complaint in its entirety states as follows:

[Defendant] Bell had denied me of receiving the “orthopedic boots/shoes” every appointment that I [] had went to go visit him, the only thing that [] Bell would do is either request/order me medication or send me back repeatedly to Central Prison in Raleigh to get surgery again by the same two (2) “Podiatry Doctors” that not only messed up on my surgery three (3) times but they both also denied me of receiving the orthopedic boots/shoes all three (3) times . . . stated: “That if I am not a diabetic or do not have a job then I can not have or receive the orthopedic boots/shoes. [W]hen I went to my appointment to see [defendant] Wynn 11/10/15 at []Tabor C.I. medical, I told her that I need a pair of orthopedic boots/shoes and she denied me to as well saying that if I'm not diabetic or have a job then I can not receive or get a pair of orthopedic boots/shoes. Also, [defendant] Beck R.N. denied me to as well, telling me to follow the sick call process then once I follow the process [defendant] Beck [] denied me again saying, if I continue to have medical problem related to my feet then submit a sick call request. Then [defendant] Baysden Jr. Assistant Superintendent Programs read my grievance and remedy but still denied me to[o] by saying no further action recommended. The shoes that the state provides is the cost of me keep having these (in-grown toe nails).

(Compl. ¶ IV).

         DISCUSSION

         A. Motion to Appoint Counsel

         Plaintiff has filed several motions to appoint counsel in this action. As stated in the court's previous orders denying plaintiff's requests for 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.”). As stated in the court's previous orders, ...


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