United States District Court, E.D. North Carolina, Western Division
ORDER & MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge.
Joseph Lee Gardner (“Gardner”), a former state
inmate proceeding pro se, filed this
action under 42 U.S.C. § 1983 (D.E. 1). This matter is
now before the court for the screening required by the Prison
Litigation Reform Act (“PLRA”). For the following
reasons, it is recommended that the district court dismiss
all of Gardner's claims except for his claims against
Drs. Rajan and Land in their individual capacities related to
the management of his pain after surgery. Gardner is
permitted to proceed with his remaining claims
before the court are Gardner's motion to appoint counsel
and motion for discovery (D.E. 3, 4). For the reasons set out
below, these motions are denied.
has been diagnosed with prostate cancer. Compl. at 5, D.E. 1.
The North Carolina Department of Public Safety
(“DPS”) contracted with Defendant Dr. Natarajan
Rajan, a urologist, to treat this condition. Id.
Rajan performed a radiation seed implantation procedure.
Id. at 5-6. After this procedure, Gardner
experienced severe pain. Id. at 6. Gardner sought
treatment for this pain, and DPS again referred him to Rajan.
Id. Rajan examined Gardner and prescribed Flomax,
did not prescribe any pain medication. Id. In
addition, Gardner contends that neither Rajan nor Land, the
prison doctor, explained the potential side-effects of Flomax
before prescribing it to him. Id. Gardner suffered
severe pain for several more weeks. Id.
Gardner was symptom free for about six months. Id.
At that point, Gardner began experiencing various kinds of
erectile and sexual dysfunction Id. at 7. Gardner
reported these symptoms to Rajan. Id. Rajan informed
Gardner that these symptoms were likely side-effects of
Flomax, and indicated that Gardner's symptoms would
subside after he stopped taking the medication. Id.
Rajan treated Gardner with Flomax for approximately another
six months and then discontinued the medication. Id.
contends that his symptoms did not improve, but worsened,
after he stopped taking Flomax. Id. at 7-8. He
opines that he would not have suffered these side-effects if
Rajan had prescribed Cardura instead of Flomax. Id.
at 7. Gardner reported his worsened symptoms to Rajan at his
next examination. Id. at 8. Rajan opined that these
symptoms were likely permanent, attributing them to an
interaction between Flomax and Gardner's diabetes.
Id. According to Gardner, Rajan was aware that
Gardner's potentially permanent sexual dysfunction was
treatable, and refused to take any further action.
Id. at 8-9.
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.”).
Gardner'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 when
plaintiff was severely mentally ill). Thus, Gardner's
motion for the appointment of counsel (D.E. 3) is DENIED.
Motion for Discovery
seeks an order compelling defendants to provide of Defendant
Eurgia Land's home address to effect service, and a copy
of his trust fund account to supplement his motion to proceed
without the prepayment of fees (D.E. 4). However, the United
States Marshal will be directed to make service on behalf of
plaintiff. Moreover, the court has already been provided with
a copy of Gardner's trust fund information, and his
motion to proceed without the prepayment of fees was allowed
(D.E. 8, 9). Accordingly, this motion is DENIED as moot.
PLRA requires courts to review, before docketing, actions
filed by prisoners against governmental entities or
officials. 28 U.S.C. § 1915A(a). The purpose of this
review is to eliminate those claims that unnecessarily impede
judicial efficiency and the administration of justice. The
court must examine the pleadings, identify cognizable claims,
and dismiss any portion of the complaint that is frivolous,
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. Id. § 1915A(b).
complaint fails to state a claim upon which relief may be
granted if it does not “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme
Court has explained that “[a] claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. Gardner's status as a pro se party
relaxes, but does not eliminate, the requirement that her
complaint contain facially plausible claims. The court must
liberally construe a pro se ...