United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
a federal inmate, filed this civil rights action pro
se pursuant to the Federal Tort Claims Act
('FTCA"), 28 U.S.C. §§ 2671-2680, and
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics. 403 U.S. 388 (1971) 42 U.S.C. § 1983.
The matter comes before the court for frivolity review
pursuant to 28 U.S.C. § 1915. The matter is also before
the court on plaintiffs motion to appoint counsel (DE 7),
motion to be granted latitude (DE 18), and motion to subpoena
records (DE 19).
Motion to Appoint Counsel
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
plaintiffs claims are 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, plaintiffs motion to appoint counsel is DENIED.
Motion to be Granted Latitude
motion, plaintiff reminds the court that he is proceeding
pro se, and, therefore, he requests latitude in
presenting his claims. In many respects, this filing
supplements his motion to appoint counsel. To the extent this
motion supplements or renews plaintiffs request for the
appointment of counsel, it is DENIED for the reasons stated
above. To the extent plaintiff requests that the court
liberally construe his pro se filings, that request
is DENIED, as moot, because the court must already do so. See
White v. White, 886 F.2d 721, 724 (4th Cir. 1989)
(pro se litigant complaints must be liberally construed;
however, a minimum level of factual support is required).
Motion to Subpoena Records
motion, plaintiff seeks the production of discovery in
support of his claims. Plaintiff s claims have not yet
survived frivolity review, and no defendant has been served.
Accordingly, this request is DENIED, as premature. Moreover,
plaintiff is notified that, after service, any discovery
requests must be made directly to defendants rather than
filed with this court. Finally, the court also notes that,
even if these requests were not premature, they appear to be
overbroad and unduly burdensome on their face.
court now conducts a frivolity review of plaintiff s
complaint and amended complaint. A complaint may be found
frivolous because of either legal or factual deficiencies.
First, a complaint is frivolous where "it lacks an
arguable basis ... in law." Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Legally frivolous
claims are based on an "indisputably meritless legal
theory" and include "claims of infringement of a
legal interest which clearly does not exist." Adams
v. Rice, 40 F.3d72, 74(4thCir. 1994) (quoting
Nejtzke, 490 U.S. at 327). Under this standard,
complaints may be dismissed for failure to state a claim
cognizable in law, although frivolity is a more lenient
standard than that for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Neitzke, 490 U.S.
at 328. Second, a complaint may be frivolous where it
"lacks an arguable basis ... in fact." Id.
at 325. Section 1915 permits federal courts "to pierce
the veil of the complaint's factual allegations and
dismiss those claims whose factual contentions are clearly
baseless." See Denton v. Hernandez, 504 U.S.
25, 32 (1992) (citing Neitzke, 490 U.S. at 327).
contends that prison officials were deliberately indifferent
to his serious medical needs and/or that the United States
provided him negligent medical treatment. Such claims are
potentially non-frivolous. However, plaintiff s current
filings fail to meet the requirements of notice pleading.
See Fed.R.Civ.P. 8. Plaintiff lists over 20
defendants scattered across eight separate counts in his
complaint. Many of these defendants are John Doe Defendants.
His allegations are rambling and disjointed, and fail to
coherently connect specific defendants to specific behavior
and specific injuries. In addition, portions of his complaint
appear fanciful and factually frivolous. (See,
e.g.. Am. Compl. (D.E. 7), p. 6 (contending that
prison officials have refused to submit his religious
confession to a grand jury)). In sum, plaintiffs filings have
not given any defendant fair notice of his claims or the
factual basis upon which they rest. See,
e.g., Swierkiewicz v. Sorema N. A., 534
U.S. 506, 512 (2002); Burnette, 687 F.3d at 182-84.
plaintiff is DIRECTED to file a particularized complaint.
Specifically, plaintiff must name the party responsible for
his alleged deprivation, the injury stemming from the
party's actions or inactions, and the alleged facts to
support his claim. Plaintiff further is on notice that he
must connect the named defendants with the alleged conduct
which resulted in the alleged constitutional violation.
Moreover, plaintiff is reminded that his amended complaint
must comply with Federal Rule of Civil Procedure 8, which
provides: "A pleading that states a claim for relief
must contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief. . . ."
Fed.R.Civ.P. 8(a)(2). The court notifies plaintiff that his
amended complaint will be considered his complaint in its
entirely, and the court will not review plaintiffs other
filings to glean any misplaced claims. Plaintiffs response
will be subject to further frivolity review. See 28
U.S.C. § 1915(e)(2)(B).
on the foregoing, plaintiffs motions (D.E. 15, 18, 19) are
DENIED. Plaintiff must file a particularized complaint as
directed herein within 21 days of this
court's order. The clerk of court is DIRECTED to send
plaintiff the form for filing a Bivens/FTCA action.
In the event plaintiff fails to respond to this court's
order, the clerk of court ...