United States District Court, D. South Carolina, Florence Division
E. Rogers, III United States Magistrate Judge
who is proceeding pro se, brings this action pursuant to 42
U.S.C. § 1983 alleging that Defendants violated his
constitutional rights by failing to protect him from a known
risk of harm. Presently before the court are Plaintiff's
Motion for Sanctions (ECF no. 31), Plaintiff's Motion to
Compel (ECF No. 33), Plaintiff's Motion to Amend
Complaint (ECF No. 37), Plaintiff's Motion to Compel (ECF
No. 40), and Plaintiff's Motion to Appoint Counsel (ECF
No. 50). All pretrial All pretrial proceedings in this case
were referred to the undersigned pursuant to the provisions
of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule
PLAINTIFF'S DISCOVERY MOTIONS
Motion for Sanctions and two Motions to Compel arise from the
same set of discovery requests sent by Plaintiff. Defendants
filed a Motion for Extension of Time (ECF No. 24) until July
5, 2018, to serve responses to Plaintiff's written
discovery requests, which the court granted (ECF No. 29). On
July 16, 2018, Plaintiff filed his Motion for Sanctions,
noting that he had not received Defendants' discovery
responses and asking the court to sanction counsel with a $5,
000 penalty. He also filed his first Motion to Compel, asking
the court to compel Defendants to respond to his discovery.
responded, stating that they had served their responses on
Plaintiff but had difficulty gathering the information
requested by Plaintiff because
there is no evidence of the events and circumstances alleged
by the Plaintiff. The Defendants' counsel has consulted
with numerous officials within SCDC searching for relevant
information. The Defendants have produce grievance records,
automated medical records, and inmate transfer information.
In addition, consultation has been made with the Division of
Police Services which has found no evidence of the
gang-related activity alleged by the Plaintiff.
Def. Resp. to Motion for Sanctions (ECF No. 34). Defendants
argue that sanctions are not appropriate because they have
not violated any court order as contemplated by Fed.R.Civ.P.
37. Rule 37(b)(2)(A) allows for sanctions when a party fails
to obey an order to provide or permit discovery. The order
Plaintiff references granted Defendants' own motion for
an extension of time to serve discovery responses. It was not
an order “to provide or permit discovery.”
Furthermore, Defendants represent that they had difficulty
obtaining the information sought by Plaintiff. For the
foregoing reasons, Plaintiff's first Motion to Compel is
moot and his Motion for Sanctions is denied.
receiving Defendants' discovery responses, Plaintiff
filed a second motion, which was docketed as a Motion to
Compel. He entitled the motion “Plaintiff's Request
for Perjury Charges to be Brought Against Defendant Gregory
Washington.” Plaintiff asserts that Washington's
response to interrogatory # 3 shows perjury. In response to
Plaintiff's question, “Did you place the Plaintiff
on deadlock on October 11, 2016, concerning an attempted
assault in the Marion Unit? Yes or No.”, Washington
responded, “No. The Defendant Washington has no
recollection of the events described and has found no
documentation to support the Plaintiff's
allegations.” Washington Disc. Resp. p. 2 (ECF No.
40-1). Plaintiff points to a Request to Staff Member form he
completed on October 18, 2016, in which he stated that on
October 11, 2016, after being threatened by more than a dozen
inmates with weapons, he and another inmate requested to be
transferred to another until to avoid an altercation. He
notes that Washington was made aware of the situation, but
returned them to the same dorm on lockdown status, stating
that he would deal with the issue the next day. Request to
Staff Member Form (ECF No. 40-1). While Plaintiff may not
agree with the response provided by Defendant Washington,
this presents an issue of credibility which generally is not
appropriately addressed under Rule 37, but is an issue for
the trier of fact. Nonetheless, Plaintiff fails to show that
sanctions are appropriate based on the record presented.
Thus, Plaintiff's motion is denied.
MOTION TO AMEND COMPLAINT
also seeks to amend his complaint to add the first name
“Gregory” to Defendant Washington's name,
remove Dennis Bush as a Defendant, change the amount of
damages he seeks, drop any claim of sleep depravation, and
amend his allegations regarding exhaustion. Defendants
consent to Plaintiff's Motion. Thus, the clerk of court
is directed to file Plaintiff's amended complaint, which
is attached as an exhibit to the motion to amend, and to
terminate Defendant Bush as a party to this action pursuant
to Fed.R.Civ.P. 41(a).
MOTION TO APPOINT COUNSEL
seeks appointment of counsel because he is unable to afford
counsel and his imprisonment limits his ability to litigate
this case. There is no right to appointed counsel in §
1983 cases. Cf. Hardwick v. Ault, 517 F.2d 295, 298
(5th Cir. 1975). While the court is granted the power to
exercise its discretion to appoint counsel for an indigent in
a civil action, 28 U.S.C. § 1915(e)(1); Smith v.
Blackledge, 451 F.2d 1201 (4th Cir. 1971), such
appointment should be allowed only in exceptional cases.
Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975).
Plaintiff has not shown that any exceptional circumstances
exist in this case. This is a typical complaint by a prisoner
seeking to pursue a civil case pro se in federal court, and
after a review of the file, this court has determined that
there are no exceptional or unusual circumstances presented
which would justify the appointment of counsel, nor would
Plaintiff be denied due process if an attorney were not
appointed. Whisenant v. Yuam, 739 F.2d 160 (4th Cir.
1984). Accordingly, Plaintiff's request for a
discretionary appointment of counsel is denied.