United States District Court, E.D. North Carolina, Western Division
James C. McNeill, Plaintiff,
Lieutenant Norris, et al, Defendants.
ORDER& MEMORANDUM &
T. Numbers, II United States Magistrate Judge
James C. McNeill commenced this action in July 2015 pursuant
to 42 U.S.C. § 1983. This matter is currently before the
court upon the following motions: (1) McNeill's motion
for a preliminary injunction (D.E. 48); (2) McNeill's
motion to appoint counsel (D.E. 49); and (3) defendants'
motion to file exhibits manually (D.E. 65). For the following
reasons, McNeill's motion to appoint counsel is DENIED
and defendants' motion to file exhibits manually is
ALLOWED. Furthermore, the clerk of court is directed to
provide McNeill with copies of the filings at docket entries
55, 56, 57, 58, 59, 61, 62, 63, 64, and 66. In addition, the
North Carolina Attorney General is directed to respond to
McNeill's allegations that prison officials withheld his
legal mail within 14 days of the entry of this order.
Finally, the undersigned recommends that McNeill's motion
for a preliminary injunction be DENIED.
Motion for Preliminary Injunction
alleges that defendants Lieutenant Norris and Correctional
Officer Nichols used excessive force against him.
Specifically, Norris and Nichols allegedly assaulted McNeill
in June, 2013 as they escorted him to a medical evaluation.
Compl. at 5, D.E. 1. McNeill also contends that defendants
Nurse Camesha Shepard and Nurse Collins were deliberately
indifferent to the injuries he suffered from this assault.
Compl. at 9-10, D.E. 1. These claims have survived frivolity
preliminary injunction is "an extraordinary and drastic
remedy, one that should not be granted unless the movant,
by a clear showing, carries the burden of
persuasion." Mazurek v. Armstrong, 520 U.S.
968, 972 (1997) (emphasis in original); see also
MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339
(4th Cir. 2001) (a preliminary injunction is an
"extraordinary remed[y] involving the exercise of very
far-reaching power to be granted only sparingly and in
limited circumstances."). To warrant a preliminary
injunction, a movant must establish that: (1) he is likely to
succeed on the merits, (2) he is likely to suffer irreparable
harm in the absence of preliminary relief, (3) the balance of
equities tips in his favor, and (4) an injunction is in the
public interest. See Winter v. Nat. Res. Def.
Council, 555 U.S. 7, 20 (2008); see also Cantley v.
W.Va. Reg'Uail & Corr. Facility Auth., Ill. F.3d
201 (4th Cir. 2014).
first argues that, beginning in June, 2017, prison officials
improperly withheld his legal mail. He further contends that
prison officials assaulted him when he tried to receive his
mail. These action took place after he filed the instant
complaint, and, by definition could not been exhausted when
he initiated this action. Thus, any attempt by McNeill to
amend his complaint to include these claims would be futile.
See Hayes v. Stanley, No. 06-6475, 2006 WL 3147498,
at * 1, n. 1 (4th Cir. Oct. 31, 2006) (finding that an inmate
does not comply with the Prison Litigation Reform Act's
exhaustion requirement by exhausting his remedies during the
course of litigation); Johnson v. Jones, 340 F.3d
624, 627-28 (8th Cir. 2003) ("[Permitting
exhaustionpendente lite undermines the objectives of
section 1997e(a)...."); Jacobs v. Holmes, No.
5:15-CT-3031-FL, 2015 WL 3891395, at *1 (E.D. N.C. June 14,
2015) (denying leave to amend complaint to allege unexhausted
claim). Moreover, McNeill does not identify the prison
officials who participated in this behavior. It is fairly
apparent, however, that none of the defendants remaining in
this action were involved in the June, 2017 incident.
Accordingly, these claims should be pursued in a separate
action and do not support the entry of a preliminary
injunction in this case.
also "request[s that] the court order defendants to stop
[the] continuing violation of deliberate indifference to his
serious medical needs named in the complaint." Mot. At
1, D.E. 48. Specifically, McNeill contends that, since the
filing of his complaint, his injuries have worsened, and
prison officials continue to provide inadequate medical
treatment. Although McNeill's deliberate indifference
claims survived the relatively low bar of frivolity review,
he has not established that he is likely to succeed on the
merits, nor has he alleged facts necessary to demonstrate
that he likely would suffer irreparable harm if his motion is
not granted. Further, the public interest is best served if
courts do not get involved with the daily operations of a
prison, especially prior to the finding of a constitutional
violation. See Florence v. Board of Chosen Freeholders of
County of Burlington, 566 U.S. 318, 328 (2012).
summary, McNeill fails to demonstrate any of the requirements
necessary to obtain injunctive relief. Thus, the district
court should deny McNeill's request for injunctive
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 byMallardv. 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.").
McNeill's action is not complex, and he has shown through
the detail of his filings that he is capable of proceeding
pro se. See Evans v. Kuplinski, No. 16-6136, 2017 WL
5513206, at *3 (4th Cir. Nov. 17, 2017) (finding a case
presented exceptional circumstances when it implicated a
legally complex tolling argument and plaintiff was severely
mentally ill). Thus, McNeill's motion for the appointment
of counsel (D.E. 3) is DENIED.
Motion to Manually File Exhibits Defendants Norris,
Collins, and Nichols request leave to manually file video
exhibits depicting the June, 2013 incident in support of
their pending motion for summary judgment (D.E. 65). This
request is ALLOWED. The North Carolina Attorney General is
directed to provide McNeill and Sheppard with copies of these
exhibits, and to ensure that McNeill has an opportunity to
view the exhibits.
Motions for Summary Judgment
filed two motions for summary judgment (D.E. 55, 61). McNeill
did not respond to either motion, and the time for doing so
has expired. Ordinarily, the court would direct McNeill to
show cause why his complaint should not be dismissed for
failure to prosecute. However, as noted above, McNeill
contends that prison officials withheld his legal mail in
June, 2017. In light of this allegation, and because McNeill
has not yet had an opportunity to view the video exhibits,
the court will extend the deadline for McNeill to respond to
an abundance of caution, the clerk of court is directed to
provide McNeill with copies of the filings of docket entries
55, 56, 57, 58, 59, 61, 62, 63, 64, and 66. Furthermore, the
North Carolina Attorney General is directed to respond to
McNeill's allegations that prison officials have withheld
with his legal mail. This response should be supported with
exhibits, including the appropriate mail logs. This response
shall be filed no later than 14 days after the entry of this