United States District Court, W.D. North Carolina, Asheville Division
Cogburn Jr. United States District Judge
MATTER is before the Court on Plaintiff Ronald
Spann's Motion to Reconsider Appointing Counsel (Doc. No.
35), and on review of a Memorandum and Recommendation (Doc.
No. 34), which addressed Defendant Robert Uhren, Jr.'s
Motion to Dismiss (Doc. No. 24). In the Memorandum and
Recommendation, Magistrate Judge Metcalf advised the parties
of the right to file objections within 14 days, in accordance
with 28 U.S.C. § 636(b)(1)(c). An objection was filed
within the time allowed. Having reviewed the motions and
objection, the Court enters the following Order.
is incarcerated at Mountain View Correctional Institution in
Spruce Pine, North Carolina. In April 2017, Plaintiff
commenced a prior action by filing a complaint against
various defendants, including Defendant Uhren. During that
action, Plaintiff was represented by counsel. In March 2018,
this Court dismissed that action without prejudice,
permitting Plaintiff to refile his action within one year.
2018, Plaintiff commenced this action by filing a pro se
complaint, again asserting claims against various defendants,
including Defendant Uhren. (Doc. No. 1). Plaintiff filed a
Motion to Appoint Counsel at that time, and he has since
filed three additional motions requesting appointment of
counsel. (Doc. Nos. 2, 7, 12, 28). All four motions were
denied, the most recent of which this Court denied in October
2018. (Doc. No. 29). Plaintiff now asks the Court to
reconsider “due to [his] Organic Mental Disorder . . .
described by the medical record.” (Doc. No. 35).
Court has reconsidered the motions but again finds that
Plaintiff has failed to demonstrate exceptional circumstances
warranting the appointment of counsel. Despite
Plaintiff's protestations of mental disability, the
undersigned observed him in prior proceedings and was
“impressed with [his] intelligence, his high degree of
engagement in the in-court proceedings, and his ability to
communicate his position to the Court.” (Doc. No. 29 at
3). Again, Plaintiff's claims are “not overly
complex, ” so the Court is convinced he will be able to
adequately represent himself in these proceedings.
(Id. at 2).
Defendant's Motion to Dismiss, the magistrate judge
issued a Memorandum and Recommendation advising the Court to
dismiss Plaintiff's official capacity claims against
Defendant and Plaintiff's individual capacity claim
against Defendant for medical malpractice, but to otherwise
deny dismissal. (Doc. No. 34). The magistrate judge
recommended dismissing the malpractice claim because
Plaintiff failed “to submit an expert certification as
required under Rule 9(j) of the North Carolina Rules of Civil
Procedure.” (Id. at 15). Plaintiff objected,
summarily contending the “malpractice claim does
directly assert a claim of negligence against the
Defendant.” (Doc. No. 35).
Federal Magistrates Act of 1979, as amended, provides that
“a district court shall make a de novo determination of
those portions of the report or specific proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1); United States v. De Leon-Ramirez,
925 F.3d 177, 181 (4th Cir. 2019); Camby v. Davis,
718 F.2d 198, 200 (4th Cir. 1983). However, “when
objections to strictly legal issues are raised and no factual
issues are challenged, de novo review of the record may be
dispensed with.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Similarly, de novo review is not
required “when a party makes general or conclusory
objections that do not direct the Court to a specific error
in the magistrate judge's proposed findings and
recommendations.” Id. Moreover, “the
statute does not on its face require any review at all . . .
of any issue that is not the subject of an objection.”
Thomas v. Arn, 474 U.S. 140, 149 (1985).
Plaintiff's sole objection is strictly legal and
conclusory, the Magistrate's Act does not require the
Court to conduct de novo review. Still, the undersigned as
district judge is ultimately responsible for the final
decision in this case. As such, the Court has reviewed the
magistrate judge's decision and has determined that it is
consistent with current law. As such, the Court will fully
affirm the Memorandum and Recommendation and grant relief in
THEREFORE, ORDERED that Plaintiffs Motion to Reconsider
Appointing Counsel (Doc. No. 35) is DENIED, Plaintiffs
Objection (Id.) is OVERRULED, the Memorandum and
Recommendation (Doc. No. 34) is AFFIRMED, and Defendant's