United States District Court, E.D. North Carolina, Western Division
ORDER AND MEMORANDUM & RECOMMENDATION
B. Jones, Jr. United States Magistrate Judge.
Benjamin Lopez-Patino, a federal inmate proceeding pro se,
commenced this action under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). This matter is currently before the court for the
screening required by the Prison Litigation
j Reform Act ("PLRA").
Also before the court are Lopez-Patino's
motions to amend (D.E. 6, 7, 11, 12, 15, 21);
discovery related motions (D.E. 10, 13); and motion to
appoint counsel (D.E. 14).
following reasons, the court allows Lopez-Patino's
motions to amend in part and denies his remaining motions. In
addition, the district court should dismiss
Motions to Amend
filed numerous motions seeking to amend his allegations and
add new defendants. His first motion to amend, which only
seeks to add additional defendants, is granted as a matter of
course. See Fed. R. Civ. P. 15(a)(1).
requires leave of court for his subsequent amendments.
See Fed. R. Civ. P. 15(a)(2). Leave to amend must be
freely given when justice so requires, and will be denied
only when the amendment would be prejudicial to the opposing
party, there has been bad faith on the part of the moving
party, or the amendment would be futile. See Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc).
proposed amendments are rambling, disjointed, and, therefore
do not comply with Rule 8 of the Federal Rules of Civil
Procedure which requires that "[a] pleading that
s states a claim for relief must contain ...
a short and plain statement of the claim showing that the
pleader is entitled to relief[.]" Fed.R.Civ.P. 8(a)(2).
Thus, the proposed amendments are futile. Moreover, the
amendments also seek to introduce unrelated claims. See,
e.g., Proposed Am. Compl. at 7, D.E. 12 (discussing
medical malpractice claim under the Federal Tort Claims Act).
Likewise, the amendments discuss unexhausted claims. See,
e.g., Id. at 6 (discussing claim exhausted after
Lopez-Patino filed suit). Lopez-Patino must pursue claims
unrelated to his original complaint in a separate action
after exhausting his administrative remedies. Fed.R.Civ.P.
20(a)(2); see also George v. Smith, 507 F.3d 605,
607 (7th Cir. 2007) (explaining that "[u]nrelated claims
against different defendants belong in different suits"
to ensure prisoners comply with Rule 20 and to prevent them
from avoiding the fee payment or three-strikes provisions of
the PLRA); Jones v. Bock, 549 U.S. 199, 211 (2007)
("[U]nexhausted claims cannot be brought in
court."). Nonetheless, out of an abundance of caution,
the court partially allows Lopez-Patino's motions to
amend. Specifically, the court allows Lopez-Patino's
motions to amend to the extent they elaborate upon his
original claims. To the extent Lopez-Patino seeks to add
unrelated and unexhausted claims, they are denied.
Discovery Related Motions
filed several motions seeking the production of discovery. In
addition to his filings formally labeled as discovery
motions, Lopez-Patino also filed several proposed discovery
requests with the court (D.E. 16, 17, 22). The court has not
completed its frivolity review, and no defendant has been
served. Therefore, Lopez-Patino's motions are premature.
In addition, discovery requests must be made directly to
defendants rather than filed with this court. Moreover,
Lopez-Patino's proposed discovery requests seek materials
unrelated to this action. See, e.g., Mot. at 1, D.E.
13 (requesting x-rays of his thumb to enable Lopez-Patino to
pursue "another claim"). Finally,
Lopez-Patino's discovery requests appear overbroad and
unduly burdensome on their face. See, e.g., First
Set of Interrogs. at 5, D.E. 16 (seeking, without limitation,
the production of "any and all documents of training and
education"). Accordingly, Lopez-Patino's discovery
motions are DENIED.
Motion for 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.").
Lopez-Patino's action is not complex, and he has
demonstrated through the detail of his filings that he is
capable of proceeding pro se. As such, this case is
not one in which exceptional circumstances merit appointment
of counsel. Therefore, Lopez-Patino's motion requesting
that he be appointed counsel is DENIED.
Screening Under the PLRA
PRLA requires courts to review, prior to 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
i 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. at
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). 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. Plaintiffs
status as a, pro se party relaxes, but does not
eliminate, the requirement that his complaint contain
facially plausible claims. The court must liberally construe
a, pro se plaintiffs allegations, but it