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McFadden v. Corpening

United States District Court, W.D. North Carolina, Asheville Division

March 13, 2018

ROBERT LAMAR McFADDEN, Plaintiff,
v.
HUBERT CORPENING, et al., Defendants.

          ORDER

          FRANK D. WHITENEY, CHIEF UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on initial review of Plaintiff s Complaint, (Doc. No. 1), and on Plaintiffs Motion for the Appointment of Counsel. (Doc. No. 3). He is proceeding in forma pauper is. See (Doc. No. 7).

         I. BACKGROUND

         Pro se Plaintiff Robert Lamar McFadden, who is an inmate at the Marion Correctional Institution, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. He names as Defendants: Marion C.I. Superintendent Hubert Corpening, Assistant Superintendent Donald Watkins, Superintendent of "RDU Program"[1] Julie Jenkins, and Captain of Internal Affairs FNU Faircloth.

         Construing the Complaint liberally and accepting the allegations as true, Plaintiff is in the RDU Program at Marion C.I. Inmates who receive infractions and are placed on E-unit segregation are not allowed to have their radios and are not otherwise informed of important current news. Defendant Jenkins is using this to force inmates back to the program and complete it without further incident. Plaintiff has informed each of the Defendants that he is being deprived of news via newspapers, newsletters, radio, and television. Defendant Corpening told Plaintiff that it is up to the families to order newspapers/newsletters for inmates. Plaintiff claims that Defendants are violating his First Amendment rights by failing to provide inmates with some kind of access to the outside world since radios are not allowed and there is a rule against having news on the television. (Doc. No. 1 at 7).

         Plaintiff seeks injunctive relief including the provision of news to inmates; compensatory, punitive, and nominal damages; and a jury trial.

         II. STANDARD OF REVIEW

         Because Plaintiff is a prisoner proceeding in forma pauper is, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is "(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). In its frivolity review, a court must determine whether the Complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). A complaint should not be dismissed for failure to state a claim "unless 'after accepting all well-pleaded allegations in the plaintiffs complaint as true and drawing all reasonable factual inferences from those facts in the plaintiffs favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief" Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).

         A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) ("Liberal construction of the pleadings is particularly appropriate where ... there is a pro se complaint raising civil rights issues."). However, the liberal construction requirement will not permit a district court to ignore a clear failure to allege facts in his complaint which set forth a claim that is cognizable under federal law. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). A pro se complaint must still contain sufficient facts "to raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal civil complaints including those filed under § 1983). This "plausibility standard requires a plaintiff to demonstrate more than a sheer possibility that a defendant has acted unlawfully." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief. Id

         III. MOTION FOR THE APPOINTMENT OF COUNSEL

         In support of his Motion for the Appointment of Counsel, Plaintiff states that he is unable to afford counsel, is proceeding in forma pauper is, he is incarcerated and is housed in segregation which will greatly limit his ability to litigate, the issues in the case are complex and will require significant research and investigation, counsel would be better able to present evidence and cross-examine witnesses, and Plaintiff has attempted to obtain a lawyer.

         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). This case does not present exceptional circumstances that justify the appointment of counsel. Therefore, Plaintiffs Motion for the Appointment of Counsel will be denied.

         IV. DISCUSSION

         (1) Fi ...


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