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McNeill v. Norris

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

January 25, 2018

James C. McNeill, Plaintiff,
v.
Lieutenant Norris, et al, Defendants.

          ORDER& MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge

         Plaintiff 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.

         I. Motion for Preliminary Injunction

         McNeill 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 review.[1]

         A 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).

         McNeill 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.

         McNeill 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).

         In 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 relief.

         II. Motion 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 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.

         III. 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.

         IV. Motions for Summary Judgment

         Defendants 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 these motions.

         Out of 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 order. ...


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