United States District Court, E.D. North Carolina, Western Division
C. DEVER III United States District Judge.
30, 2017, Matthew James Griffin ("Griffin" or
"plaintiff) filed a complaint, alleging claims under 42
U.S.C. § 1983, the Americans with Disabilities Act
("ADA"), 42 U.S.C. §§ 12101, et seq., and
the Rehabilitation Act, 29U.S.C. § 794 [D.E. 1]. Griffin
also asserts state law claims. On November 21, 2018,
Magistrate Judge Numbers issued a Memorandum and
Recommendation ("M&R") [D.E. 10], recommended
denying Griffin's motion for a temporary restraining
order or preliminary injunction ("TRO motion")
[D.E. 9], and directing the clerk of court to continue
managing Griffin's claims. On January 11, 2019, Griffin
objected to the M&R [D.E. 22].
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the magistrate
judge's report or specified proposed findings or
recommendations to which objection is made." Diamond
v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (emphasis, alteration, and
quotation omitted); see 28 U.S.C. § 636(b). Absent a
timely objection, "a district court need not conduct a
de novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation." Diamond, 416 F.3d
at 315 (quotation omitted).
court has considered Griffin's motion for a TRO or
preliminary injunction under the governing standard. See
Fed.R.Civ.P. 65; Winter v. Natural Res. Def. Council.
Inc., 555 U.S. 7, 20 (2008); Real Truth About Obama,
Inc. v. FEC, 575 F.3d 342, 346 (4th Cir. 2009),
vacated on other grounds. 559 U.S. 1089
(2010), reissued in relevant part. 607 F.3d
355 (4th Cir. 2010) (per curiam); U.S. Dep't of Labor
v. Wolf Run Mining Co., 452 F.3d 275, 281 n.1 (4th Cir.
2006). The court denies the motion as meritless.
also filed three motions seeking voluntary dismissal of his
claims for monetary damages under me ADA and his state law
claims. See [D.E. 11, 12, 13]. A plaintiff may voluntarily
dismiss an action without order of the court by filing a
notice of dismissal at any time before service by the adverse
party of an answer or a motion for summary judgment. See
Fed.R.Civ.P. 41(a)(1). Otherwise an action shall not be
dismissed on the plaintiffs request except upon an order of
the court. See Fed.R.Civ.P. 41(a)(2). Defendants have not
been served or filed any responsive pleadings. Accordingly,
the court grants Griffin's motions for voluntary
dismissal pursuant to Rule 41(a)(1) [D.E. 11, 12, 13], and
dismisses Griffin's claims for monetary damages under the
ADA and state law claims.
December 26, 2018, Griffin moved for appointment of counsel
[D.E. 16]. No right to counsel exists in civil cases absent
"exceptional circumstances." Whisenant v.
Yuam, 739 F.2d 160, 163 (4th Cir. 1984).
abrogated in part on other grounds by
Mallard v. U.S. Dist. Court, 490 U.S. 296 (1989);
see Cook v. Bounds, 518 F.2d 779, 780 (4th Cir.
1975). The existence of exceptional circumstances
"hinges on [the] characteristics of the claim and the
litigant." Whisenant 739 F.2d at 163. The facts
of this case and Griffin's abilities do not present
exceptional circumstances. Nonetheless, the court grants in
part Griffin's motion for appointment of counsel and
appoints North Carolina Prisoner Legal Services, Inc.
("NCPLS"), to assist Griffin with conducting
discovery after defendants have been served with the
complaint and the court has issued a scheduling order
providing for a period of discovery. See Standing Order
January 22, 2019, Griffin moved for an order requiring the
clerk of court "to retain the paper of copy of document
19" [D.E. 22], and argues that the clerk improperly
scanned this filing, rendering it illegible. The
court has reviewed the docket and disagrees. Accordingly, the
court denies the motion [D.E. 22].
the court ADOPTS the conclusions in the M&R [D.E. 10] and
DENIES Griffin's TRO motion [D.E. 9]. The court GRANTS
Griffin's motions for voluntary dismissal [D.E. 11, 12,
13] and DISMISSES without prejudice Griffin's claims for
monetary damages under the ADA and his state law claims
without prejudice. The court also GRANTS IN PART
Griffin's motion for appointment of counsel [D.E. 16],
and the court appoints North Carolina Prisoner Legal
Services, Inc. ("NCPLS") to assist Griffin with
discovery. The court DENIES Griffin's request that the
court retain a paper copy [D.E. 22]. Griffin may proceed with
his remaining claims. The clerk of court is DIRECTED to
proceed in accordance with standing order 14-SO-02 which
governs service of process in state prisoner civil rights
cases. If necessary, the court DIRECTS the United ...