United States District Court, W.D. North Carolina, Bryson City Division
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on a Motion to Strike Order, filed
by Defendant Ray, (Doc. No. 61); a Motion to Strike
Plaintiff's Discovery Requests, filed by Defendants
Allen, Gould, Bishop, and Salyers, (Doc. No. 62);
Plaintiff's Motion for Extension of Time, (Doc. No. 64);
Plaintiff's Answer and Request of Court to Put on Hold or
Dismiss the Request for Summary Judgment, (Doc. No. 71); and
Plaintiff's Motion to Appoint Counsel, (Doc. No. 72).
Plaintiff's Motion to Appoint Counsel, (Doc. No.
as to Plaintiff's motion to appoint counsel, there is no
absolute right to the appointment of counsel in civil actions
such as this one. Therefore, a plaintiff must present
“exceptional circumstances” in order to require
the Court to seek the assistance of a private attorney for a
plaintiff who is unable to afford counsel. Miller v.
Simmons, 814 F.2d 962, 966 (4th Cir. 1987).
Notwithstanding Plaintiff's contentions to the contrary,
this case does not present exceptional circumstances
justifying appointment of counsel. Therefore, Plaintiff's
motion to appoint counsel will be denied.
Defendants' Motions to Strike Plaintiff's Discovery
Requests (Doc. Nos. 61, 62)
Defendant Diane Ray moves the Court to strike Plaintiff's
First set of Interrogatories, Request for Production of
Documents, and Requests for Admission. On November 2, 2016,
this Court issued a Pretrial Order and Case Management Plan
(Doc. No. 48), setting the deadline to complete discovery no
later than March 1, 2017, and setting April 1, 2017, as the
deadline to file dispositive motions. This Order states that,
“Parties are directed to initiate discovery requests .
. . sufficiently in advance of the discovery completion
deadline so as to comply with this Order. Discovery requests
that seek responses . . . after the discovery completion
deadline are not enforceable except by order of the Court for
good cause shown.” (Doc. No. 48, ¶ E at 2-3).
February 13, 2017, Plaintiff filed a Motion to Extend Time to
Complete Discovery. (Doc. No. 49). On February 22, 2017,
counsel for defendants Allen, Gould, Bishop, and Salyers
filed a similar motion, noting that counsel for defendant Ray
consented to the motion. (Doc. No. 52). On March 8, 2017,
this Court issued an order granting both motions, extending
the deadline to complete discovery to April 15, 2017, and the
deadline to file dispositive motions to May 15, 2017. (Doc.
No. 53). April 15, 2017 falls on a Saturday, making the
actual deadline Monday, April 17, 2017.
April 3, 2017, Barrett Johnson filed a Notice of Appearance
on behalf of Defendant Ray, serving a filed copy on Plaintiff
by U.S. Mail. (Doc. No. 60). On April 13, 2017, counsel for
Defendant Ray received Plaintiff's First set of
Interrogatories and Requests for Admission and
Plaintiff's First Request for Production of Documents.
The envelope was address to Barrett Johnson, postmarked April
10, 2017, and stamped “Received” April 13, 2017.
The reverse of the envelope was stamped by U.S. Penitentiary,
McCreary in Pine Knot, Kentucky, as being processed for
mailing on April 7, 2017. Although Plaintiff dated the
discovery as March 27, 2017, there was no Certificate of
Service. Defendant Ray maintains that since the envelope was
addressed to Barrett Johnson, who did not appear in this case
until April 3, 2017, the discovery could not have been mailed
until Plaintiff received the Notice of Appearance. Finally,
the penitentiary mail processing stamp indicates the
discovery was served on or about April 7, 2017.
Ray notes that Plaintiff served the first set of discovery on
Defendant Ray five months and four days after the case
management order was issued, one month after the Court
allowed the Motion to Extend the Deadline to Complete
Discovery, and only eight days before the period in which
discovery must be completed. Defendant Ray contends that
Plaintiff therefore did not initiate the discovery requests
sufficiently in advance of the discovery completion deadline
so as to comply with the Court's scheduling order setting
the deadline for discovery at April 15. Defendant Ray
therefore has asked the Court to enter an order striking
Plaintiff's First Set of Interrogatories, Request for
Production of Documents, and Requests for Admission.
Court will deny Defendant Ray's motion to strike
Plaintiff's discovery requests. Here, although Plaintiff
waited until just eight days before the expiration of the
discovery deadline, Plaintiff still submitted the discovery
requests before expiration of the deadline. This Court will
grant Plaintiff leeway in his interpretation of the
Court's scheduling order since he is a pro se prisoner
and since the order does not set a specific date or time
period for when the discovery requests had to be submitted.
Therefore, the Court finds that Defendant Ray must answer
Plaintiff's discovery requests. Similarly, Defendants
Allen, Bishop, Gould, and Salyers have also filed a motion to
strike the discovery requests, noting that counsel for these
Defendants did not receive the discovery requests from
Plaintiff until April 17, 2017. For the same reason the Court
is denying Defendant Ray's motion to strike, the Court
also denies the motion to strike filed by Defendants Allen,
Bishop, Gould, and Salyers.
Plaintiffs Motion for Extension of Time to File
Response/Reply, (Doc. No. 64), and Plaintiff's Answer and
Request of Court to Put on Hold or Dismiss the Request for
Summary Judgment, (Doc. No. 71)
in his two motions for extension of time, Plaintiff seeks an
extension of time to respond to Defendants' summary
judgment motions and time to respond to the Defendants'
motion to strike. The Court will grant the motions for
extension of time to the extent that Plaintiff shall have
sixty days in which to respond to Defendants' summary
IS THEREFORE ORDERED that:
(1) Defendant Ray's Motion to Strike Order, (Doc. No.
61), and Motion to Strike Plaintiffs Discovery Requests,
filed by Defendants Allen, Gould, Bishop, and Salyers, (Doc.
No. 62); are DENIED for the reasons stated in this Order.
Defendants shall have ...