United States District Court, S.D. Georgia, Savannah Division
Christopher L. Ray United States Magistrate Judge
the Court is defendant Lermy's Motion to Stay Discovery,
doc. 32, and Motion for Extension of Time to Respond to
Plaintiff's Requests for production of Documents, doc.
35. Also before the Court are a letter from plaintiff, doc.
25, plaintiff's Motion to Appoint Counsel, doc. 31, and
Motion to Direct defendant to respond to discovery, doc. 33.
For the following reasons, the Court GRANTS
defendant's motion to stay and motion for extension of
time. Docs. 32 & 35. The Court DENIES
plaintiff's motion to appoint counsel and motion to
direct. Docs. 31 & 33. The Court
CONSTRUES plaintiff's letter as a motion
for extension of time to respond to plaintiff's motion to
dismiss. Finally, the Clerk of Court is
DIRECTED to TERMINATE
plaintiff's request for an injunction and temporary
restraining order. Accordingly, the Court will grant
plaintiff thirty days from the date of this Order to respond
to the motion to dismiss.
filed this case alleging that defendant Lermy intentionally
flashed a strobe light into his eyes. Doc. 1. After
screening, the Court allowed the claims against defendant
Lermy to proceed. Doc. 9. The Complaint was served and
defendant Lermy returned a waiver of service. Doc. 12.
However, a timely answer was not filed and a Clerk's
Entry of Default was filed. Doc. 15. However, defendant Lermy
appeared through counsel and filed a motion to set aside the
default. Doc. 18. A month after that motion was filed, but
before the Court had ruled on the Motion to Reopen Default,
defendant filed a Motion to Dismiss. Doc. 23. Plaintiff filed
a letter in response requesting guidance on whether a
response was necessary as the case was in default. Doc. 25.
After review, the Court CONSTRUES this
letter, doc. 25, as a motion for extension of time to respond
to the Motion to Dismiss. Accordingly, plaintiff is
DIRECTED to file a response to
plaintiff's motion to dismiss within 30 days of the date
of this Order. Failure to respond will result in the motion
being treated as unopposed.
Court ultimately reopened default. Docs. 24, 28. Because the
Motion to Dismiss remained pending, defendant requested a
stay of discovery generally, doc. 32, and a motion for
extension of time to respond to plaintiff's discovery
requests, doc. 35. Accordingly, the Court now takes a
preliminary peek at the defendant's Motion to Dismiss to
determine whether a stay is appropriate.
Court has broad discretion to stay discovery pending the
resolution of a dispositive motion. See S. Motors
Chevrolet, Inc. v. Gen. Motors, LLC, 2014 WL 5644089, at
*1 (S.D. Ga. Nov. 4, 2014). The Court has conducted the
“preliminary peek” at the dismissal motion.
See, e.g., McCabe v. Foley, 233 F.R.D. 683, 685
(M.D. Fla. 2006). The motion to dismiss argues that plaintiff
failed to exhaust his administrative remedies. Doc. 23 at
5-6. As this would require the dismissal of plaintiff's
claim, the Court concludes that a stay is appropriate. As a
result, defendant's motion, Doc. 32, is
GRANTED and all deadlines in this case are
STAYED until defendant's motion to
dismiss is resolved. As to the request for an extension of
time to respond to plaintiff's discovery, doc. 35,
defendant shall have 30 days from the date the Court rules on
the motion to dismiss to respond. Because the Court concludes
that a stay of discovery is appropriate, plaintiff's
Motion to Direct defendant to respond to discovery, doc. 33,
has also requested that the Court appoint him counsel. In
this civil case, plaintiff has no constitutional right to the
appointment of counsel. Wright v. Langford, 562
Fed.Appx. 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 Fed.Appx. 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, 889 F.2d 1088
(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)).
Eleventh Circuit 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
Fed.Appx. 456, 457 (11th Cir. 2010) (quoting
Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993)).
A review of the record and pleadings in this case reveals no
such “exceptional circumstances” warranting the
appointment of counsel.
plaintiff is incarcerated, this Court has repeatedly found
that “prisoners do not receive special consideration
notwithstanding the challenges of litigating a case while
incarcerated.” See, e.g., Hampton v. Peeples,
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 Fed.Appx. 1027,
1030 (11th Cir. 2015); Wright, 562 Fed.Appx. at 777;
Faulkner v. Monroe Cty. Sheriff's Dep't, 523
Fed.Appx. 410, 414 (11th Cir. 2010); Fowler, 899
F.2d at 1091, 1096; Wahl, 773 F.2d at 1174). This
case is not so complex, legally or factually, as to prevent
plaintiff from presenting “the essential merits of his
position” to the Court. His request for appointment of
counsel, doc. 31, is DENIED.
plaintiff's original Complaint was docketed as a request
for a preliminary injunction and temporary restraining order.
Doc. 1. However, he filed an amended complaint indicating
that he was seeking declaratory and injunctive relief as a
remedy in his complaint. Doc. 8 at 7. As plaintiff has
withdrawn his request for the extraordinary remedies he
asserted initially, the Clerk of Court is
DIRECTED to TERMINATE that
motion. Doc. 1.
 The Clerk of Court is
DIRECTED to send plaintiff a copy of
defendant's Motion to Dismiss along with a copy of this
 To the extent plaintiff still desires
to request these remedies, he may file a renewed motion for a
preliminary injunction and temporary restraining order within