United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge
MATTER is before the Court on the several Motions
filed by the pro se Plaintiff, (Doc. Nos. 45, 47,
51, 52, 53, 55, 57, 61, 62).
pro se incarcerated Plaintiff filed this civil
rights suit pursuant to 42 U.S.C. § 1983 for an incident
that allegedly occurred at the Marion Correctional
Institution. He is proceeding in forma pauperis.
(Doc. No. 12). The Amended Complaint passed initial review on
a claim of excessive force against correctional officer
Pamela Martin. (Doc. No. 18). The Court entered a Pretrial
Order and Case Management Plan including a discovery cutoff
date of July 1, 2019 and a due date for dispositive motions
of July 29 that was extended to August 28, 2019. (Doc. Nos.
has filed a number of Motions in which he seeks, inter
alia, preliminary injunctive relief transferring him to
another prison, judgment in his favor, discovery, and the
appointment of counsel.
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf
v. Geren, 553 U.S. 674, 689-90 (2008)). A preliminary
injunction is a remedy that is “granted only sparingly
and in limited circumstances.” MicroStrategy, Inc.
v. Motorola, Inc., 245 F.3d 335, 339 (4th
Cir. 2001) (quoting Direx Israel, Ltd. v. Breakthrough
Med. Corp., 952 F.2d 802, 816 (4th Cir.
1991)). To obtain a preliminary injunction, a movant must
demonstrate: (1) that he is likely to succeed on the merits;
(2) that he is likely to suffer irreparable harm in the
absence of preliminary relief; (3) that the balance of
equities tips in his favor; and (4) that an injunction is in
the public interest. DiBiase v. SPX Corp., 872 F.3d
224, 230 (4th Cir. 2017) (quoting Winter,
555 U.S. at 20).
conclusory Motions seeking transfer to another prison have
failed to demonstrate that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities
tips in his favor, or that an injunction is in the public
interest. Therefore, his request for preliminary injunctive
relief will be denied.
seeks the entry of judgment in his favor. Plaintiff's
Motions are denied because he has not demonstrated that he is
entitled to judgment as a matter of law. The Court notes that
the deadline for filing dispositive motions has not yet
request for the appointment of counsel will also be denied.
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
(4thCir. 1987). Plaintiff states that he cannot
afford counsel and has asked to proceed in forma
pauperis, his imprisonment will greatly limit his
ability to litigate and the issues are complex and will
require significant research and investigation; he has
“limited access and NO access to any law and limited
and no knowledge of any law, ” (Doc. No. 61 at 1), that
trial will likely involve conflicting testimony that a lawyer
would be better able to present and cross examine witnesses,
that Plaintiff has made repeated efforts to obtain a lawyer
and has filed many motions to which defense counsel has
failed to respond, and NCPLS has “act to get permission
from the court to help the plaintiff in this case, ”
(Doc. No. 61 at 2). Plaintiff has been able to represent
himself adequately thus far in the proceedings and he has
failed to demonstrate the existence of extraordinary
circumstances. The Motion for Appointment of Counsel will
therefore be denied.
also filed several requests for discovery with the Court. To
the extent that discovery requests were misdirected to the
Court, they were disregarded. See LCvR 26.2
(“The parties shall not file any initial disclosures,
designations of expert witnesses and their reports, discovery
requests or responses thereto, deposition transcripts, or
other discovery material unless: (1) directed to do so by the
Court; (2) such materials are necessary for use in an
in-court proceeding; or (3) such materials are filed in
support of, or in opposition to, a motion or
petition.”). Plaintiff never filed a motion to compel
alleging that Defendant had failed to comply with discovery
requests. See (Doc. No. 46) (Pretrial Order and Case
Management Plan addressing motions to compel). Therefore, to
the extent that Plaintiffs Motions address discovery, they
additional miscellaneous requests for relief contained in
Plaintiffs Motions are insufficient to support relief and are
IS THEREFORE ORDERED that Plaintiffs pending
Motions, (Doc. Nos. 45, 47, 51, 52, 53, 55, 57, 61, 62), are