United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion to
Compel Discovery, (doc. 31), Motion to Appoint Counsel, (doc.
32), and Motion for Preliminary Injunction for Law Library
Access Time,  (doc. 38). Defendant filed Responses
opposing Plaintiff's Motions to Compel and to Appoint
Counsel. (Docs. 34, 35.) Plaintiff filed a Reply regarding
his Motion to Appoint Counsel. (Doc. 36.) For the reasons set
forth below, the Court DENIES
Plaintiff's Motions to Compel Discovery and to Appoint
Counsel. (Docs. 31, 32.) Further, I
RECOMMEND that the Court
DENY Plaintiff's Motion for Preliminary
Injunction for Law Library Access Time. (Doc. 38.)
Additionally, the Court gives instructions to Defendant
regarding Plaintiff's motion for the return of his law
library access time.
an inmate at Coffee Correctional Facility in Nicholls,
Georgia, filed this action, pro se, pursuant to 42
U.S.C. § 1983 contesting certain conditions of his
confinement. (Doc. 1.) After frivolity review,
Plaintiff's surviving Eighth Amendment claims were
limited to those against the above-named Defendant in his
individual capacity for compensatory and punitive damages
under Section 1983, as well as injunctive relief. (Docs. 20,
27.) On October 5, 2016, Defendant filed a Motion for Summary
Judgment contending the undisputed facts show he did not use
excessive force in violation of the Eighth Amendment and
Plaintiff is not entitled to an injunction, and that Motion
remains pending. (Doc. 28.) Plaintiff filed a Response. (Doc.
30.) Subsequently, Plaintiff filed his aforementioned Motions
to Compel Discovery, to Appoint Counsel, and for Law Library
Access Time, (docs. 31, 32, 38), and Defendant filed his
Responses in opposition, (docs. 34, 35). Per the Court's
Scheduling Notice, discovery closed on June 27, 2017, and the
proposed Pretrial Order was submitted on August 25, 2017.
(Docs. 24, 33.)
Plaintiff's Motion to Compel Discovery (Doc. 31)
filed a Motion to Compel Discovery, contending Defendant
failed to respond to his August 10, 2016 request for
production of documents. (Doc. 31, p. 2.) However, Plaintiff
does not indicate that he has complied with this Court's
Local Rule 26.5. Plaintiff does not provide any specific
grounds he has for filing the Motion, much less reasons to
support those grounds. Additionally, Plaintiff provides no
certification to show that he has in good faith conferred or
attempted to confer with the person or party that allegedly
failed to make the disclosure in an effort to obtain a
response without Court action. Fed.R.Civ.P. 37(a)(1).
Plaintiff simply states that he “submitted a
motion” for various documents but has yet to receive
them. (Doc. 31, p. 2.) He provides no evidence of these
submissions, and furthermore, he gives no indication that he
at all tried to resolve this dispute before coming to Court.
In response, Defendant avers that Plaintiff never served any
discovery on that date or any other date. (Doc. 34, p. 2.)
Defendant supports this claim with two adjoining affidavits.
(Id. at pp. 4-6.) Moreover, the Court notes that
discovery closed on June 27, 2017. Accordingly, the Court
DENIES Plaintiff's Motion to Compel.
Plaintiff's Motion to Appoint Counsel (Doc. 32)
civil case, Plaintiff has no constitutional right to the
appointment of counsel. Wright v. Langford, 562 F.
App'x 769, 777 (11th Cir. 2014) (citing Bass v.
Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999)).
“Although a court may, pursuant to 28 U.S.C. §
1915(e)(1), appoint counsel for an indigent plaintiff, it has
broad discretion in making this decision, and should appoint
counsel only in exceptional circumstances.”
Wright, 562 F. App'x at 777 (citing
Bass, 170 F.3d at 1320). Appointment of counsel in a
civil case is a “privilege that is justified only by
exceptional circumstances, such as where the facts and legal
issues are so novel or complex as to require the assistance
of a trained practitioner.” Fowler v. Jones,
899 F.2d 1088, 1096 (11th Cir. 1990) (citing Poole v.
Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987), and
Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir.
1985)). The Eleventh Circuit Court of Appeals has explained
that “the key” to assessing whether counsel
should be appointed “is whether the pro se
litigant needs help in presenting the essential merits of his
or her position to the court. Where the facts and issues are
simple, he or she usually will not need such help.”
McDaniels v. Lee, 405 F. App'x 456, 457 (11th
Cir. 2010) (quoting Kilgo v. Ricks, 983 F.2d 189,
193 (11th Cir. 1993)).
Court has reviewed the record and pleadings in this case and
finds no “exceptional circumstances” warranting
the appointment of counsel. While the Court understands that
Plaintiff is incarcerated, this Court has repeatedly found
that “prisoners do not receive special consideration
notwithstanding the challenges of litigating a case while
incarcerated.” Hampton v. Peeples,
No. CV 614-104, 2015 WL 4112435, at *2 (S.D. Ga. July 7,
2015). “Indeed, the Eleventh Circuit has consistently
upheld district courts' decisions to refuse appointment
of counsel in 42 U.S.C. § 1983 actions similar to this
case for want of exceptional circumstances.”
Id. (citing Smith v. Warden, Hardee Corr.
Inst., 597 F. App'x 1027, 1030 (11th Cir. 2015);
Wright, 562 F. App'x at 777; Faulkner v.
Monroe Cty. Sheriff's Dep't, 523 F. App'x
696, 702 (11th Cir. 2013); McDaniels v. Lee, 405 F.
App'x 456, 457 (11th Cir. 2010); Sims v. Nguyen,
403 F. App'x 410, 414 (11th Cir. 2010); Fowler,
899 F.2d at 1091, 1096; Wahl, 773 F.2d at 1174). As
shown by his many competent pleadings, including those
presently before the Court, this case is not so complex
legally or factually to prevent Plaintiff from presenting
“the essential merits of his position” to the
Court. The Court recognizes English is not Plaintiff's
first language, (doc. 36), but finds that his filings and
communications with the Court demonstrate an understanding
proficient to proceed without appointment of counsel. For
these reasons, the Court DENIES
Plaintiff's Motion to Appoint Counsel.
Plaintiff's Motion for Preliminary Injunction for Law
Library Access Time (Doc. 38)
Motion for a Preliminary Injunction, Plaintiff requests that
the Court order prison officials to grant him the legal
research time he had prior to September 29, 2017, which was
three days each week. (Doc. 38, p. 2.) Plaintiff submits he
has had this level of access for three years and provides
supporting documentation showing the truth of this claim.
(Id.; Doc. 38-1, pp. 6-9.) Plaintiff argues his
access was revoked to harm his lawsuit and done so in
violation of his Constitutional rights. (Doc. 38, pp. 2-3.)
entitled to a temporary restraining order or preliminary
injunction, a plaintiff must demonstrate: (1) a substantial
likelihood of ultimate success on the merits; (2) that a
restraining order or injunction is necessary to prevent
irreparable injury; (3) that the threatened injury outweighs
the harm that the restraining order or injunction would
inflict on the other party; and (4) that the restraining
order or injunction would not be adverse to the public
interest. Schiavo ex rel. Schindler v.
Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005).
Similarly, a plaintiff requesting a permanent injunction must
satisfy the following four-factor test:
(1) that [the plaintiff] has suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages,
are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted; and (4) that