Carter v. Western Regional Jail et al, No. 3:2014cv25636 - Document 13 (S.D.W. Va. 2014)
Court Description: MEMORANDUM OPINION AND ORDER OF FIRST DISCOVERY STATUS CONFERENCE denying, without prejudice, Plaintiff's Motion for the Appointment of Counsel; granting Plaintiff's oral motion to amend the complaint; directing the Clerk of Court to prepar e a summons and copies of the complaint and this Order for Correctional Officer Gary Lambert and Correctional Officer Matthew Berlin and directing the United States Marshals Service to effect service of process on each named Defendant; directing Defe ndant Western Regional Jail to provide the Clerk with the most recent addresses of the named Defendants upon the Clerk's request; directing Plaintiff to file with the Clerk a list containing the names of all witnesses/participants to the alleged assault of Plaintiff, a list of his medical and out-of-pocket expenses, as more fully set forth herein, by 11/14/2014; Defendant Western Regional Jail shall serve Plaintiff with a list of the correctional officers on duty on 10/17/2012 and with copies of their photographs, if available, and additional materials, as more fully set forth herein, by 10/31/2014. Signed by Magistrate Judge Cheryl A. Eifert on 10/16/2014. (cc: Plaintiff, attys; any unrepresented party) (mkw)
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Carter v. Western Regional Jail et al Doc. 13 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION KEN N ETH CARTER, Plain tiff, v. Cas e N o .: 3 :14 -cv-2 56 3 6 W ESTERN REGION AL JAIL; an d CORRECTION AL OFFICERS JOH N D OES, D e fe n d an ts . MEMORAN D U M OPIN ION AN D ORD ER OF FIRST D ISCOVERY STATU S CON FEREN CE On October 16, 20 14, the Court held an initial status conference in the abovestyled civil action. Plaintiff appeared via teleconference from the Mount Olive Correctional Com plex, and Defendant Western Regional J ail appeared by counsel, Tim J . Yianne. After hearing from Plaintiff and counsel for Defendant, the Court ORD ERS as follows: 1. Plaintiff s Motion for the Appointm ent of Counsel, (ECF No. 2 at 5), is D EN IED , without prejudice. Although the Court may, in its discretion, request an attorney to represent Plaintiff in this § 1983 action, he has no constitutional right to counsel. 28 U.S.C. § 1915(e)(1) (20 10 ); see also Hardw ick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975). The United States Court of Appeals for the Fourth Circuit has m ade it clear that the appointm ent of counsel in civil actions should be allowed only in exceptional cases. Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). Whether 1 Dockets.Justia.com sufficiently rem arkable circum stances exist to justify pro bono representation depends on the com plexity of the claim s and the ability of the indigent party to present them . W hisenant v. Yuam , 739 F.2d 160 , 163 (4th Cir. 1984); see also Branch v. Cole, 686 F.2d 264, 266. ( [N]o com prehensive definition of exceptional circum stances is practical. The existence of such circum stances will turn on the quality of two basic factors-the type and com plexity of the case, and the abilities of the individuals bringing it. (footnote om itted)). Here, Plaintiff fails to present evidence or argum ent supporting the conclusion that his case m eets the high threshold necessary for the appointm ent of counsel. To the contrary, Plaintiff offers no rationale supporting the assignm ent of pro bono counsel. The Court has exam ined the record and finds that the claim s asserted by Plaintiff are sim ple, and he is quite capable of presenting them . Therefore, the circum stances do not justify the appointm ent of counsel at this tim e. 2. Plaintiff s oral m otion to am end the com plaint is GRAN TED . The following individuals shall be added as nam ed Defendants: Correctional Officer Lam bert and Correctional Officer Berlin. The Clerk of Court is ORD ERED to prepare a sum m ons and copies of the com plaint and this Order for Correctional Officer Gary Lam bert and Correctional Officer Matthew Berlin, and the United States Marshals Service is ORD ERED to effect service of process on each nam ed Defendant. Pursuant to Federal Rule of Civil Procedure 4(e) and 4(h) and West Virginia Rule of Civil Procedure 4(d), the Marshals Service m ay elect to effect service by m ailing the sum m ons and com plaint to each defendant by certified m ail, return receipt requested, and delivery restricted to the addressee. Defendant Western Regional J ail is ORD ERED to provide the Clerk with the m ost recent addresses of the nam ed Defendants upon the Clerk s request. 2 3. To begin the discovery process, the parties are ORD ERED to do the following: a. On or before N o ve m be r 14 , 2 0 14 , Plaintiff shall file with the Clerk a list containing the nam es of all witnesses/ participants to the alleged assault of Plaintiff at the Western Regional J ail and all witnesses who otherwise have relevant inform ation related to Plaintiff s claim s and dam ages. To the extent that Plaintiff does not know the nam e of a witness, Plaintiff, to the best of his ability, shall provide a description of the witness. Plaintiff shall also include a short description of the inform ation he believes each listed witness can provide. b. On or before N o ve m be r 14 , 2 0 14 , Plaintiff shall file with the Clerk a list of his m edical and out-of-pocket expenses incurred as a result of the alleged assaults. Plaintiff shall also describe his claim ed injuries. c. Upon receipt of a medical records release form from Mr. Yianne, Plaintiff shall sign the release form and return it to Mr. Yianne. Counsel shall provide Plaintiff with copies of all m edical records obtained through the use of the m edical records release. d. On or before Octo be r 3 1, 2 0 14 , Defendant Western Regional J ail shall serve Plaintiff with a list of the correctional officers on duty on October 17, 20 12 and with copies of their photographs, if available, to assist Plaintiff in identifying his other alleged attackers. e. Defendant shall im m e d iate ly secure and retain copies of any and all docum ents, including videotapes, relevant to (1) the alleged assault on Plaintiff on October 17, 20 12; (2) any subsequent investigation of the 3 assault; (3) an investigation of any of the Defendants related to their actions or perform ance at the Western Regional J ail; (4) disciplinary proceedings or m atters involving any of the Defendants; (5) Plaintiff s inm ate file including grievance form s and responses; and (6) institutional policies and procedures regarding the use of force by correctional officers at the Western Regional J ail. f. On or before N o ve m be r 14 , 2 0 14 , Defendant shall produce the following m aterials to Plaintiff: any and all docum ents, including videotapes, pertaining to (1) the alleged assault of Plaintiff at the Western Regional J ail; (2) any subsequent investigation of the assault; (3) disciplinary proceedings or m atters involving Defendants Lam bert and Berlin as a result of Plaintiff s alleged assault or other inm ate assaults; (4) Plaintiff s inm ate file from the Western Regional J ail and the Tygart Valley Regional J ail, including grievance form s and responses, and any other docum ents involving Plaintiff, or between Plaintiff and Correctional Facility Authority Personnel; and (5) photographs of Plaintiff taken before, during, or after the assault. To the extent that Defendant withholds relevant inform ation under a claim of privilege or other protection, Defendant shall provide, contem poraneously with the docum ent production, a privilege log that fully com plies with the Federal Rules of Civil Procedure. Counsel for Defendants has agreed to tender an Agreed Protective Order to the Court for entry. Plaintiff granted defense counsel perm ission to sign the Order on Plaintiff s behalf. All docum ents m arked confidential, and all of Plaintiff s m edical records, shall be subject to the 4 protective order. All fu tu re p artie s to th is litigatio n s h all be bo u n d by th e te rm s an d co n d itio n s o f th e p ro te ctive o rd e r. The Court shall issue a Scheduling Order after the newly added defendants have been served with the com plaint and have filed an answer or otherwise responded to the com plaint. A discovery status conference will also be scheduled at that tim e. Pu rs u an t to th is Co u rt s Lo cal Ru le s , Plain tiff is re s p o n s ible fo r n o tifyin g th e Cle rk o f Co u rt o f an y ch an ge in h is ad d re s s o r o th e r co n tact in fo rm atio n . The Clerk is instructed to provide a copy of this Order to Plaintiff, any unrepresented party, and counsel of record. EN TERED : October 16, 20 14. 5
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