United States District Court, D. South Carolina
J. Gossett UNITED STATES MAGISTRATE JUDGE
a civil action filed by a state prisoner. Therefore, in the
event that a limitations issue arises, Plaintiff shall have
the benefit of the holding in Houston v. Lack, 487
U.S. 266 (1988) (prisoner's pleading was filed at the
moment of delivery to prison authorities for forwarding to
District Court). Under Local Civil Rule 73.02(B)(2) (D.S.C.),
pretrial proceedings in this action have been referred to the
assigned United States Magistrate Judge.
FOR THE APPOINTMENT OF COUNSEL:
requests the appointment of counsel in this case. (ECF No.
22) There is no right to appointed counsel in § 1983
cases. Hardwick v. Ault, 517 F.2d 295 (5th Cir.
1975). The court may use its discretion to request counsel to
represent an indigent in a civil action. See 28
U.S.C. § 1915(e)(1); Mallard v. United States Dist.
Court for S. Dist. of Iowa, 490 U.S. 296 (1989).
However, such discretion “should be allowed only in
exceptional cases.” Cook v. Bounds, 518 F.2d
779, 780 (4th Cir. 1975). Whether exceptional circumstances
are present depends on the type and complexity of the case,
and the pro se litigant's ability to prosecute
it. Whisenant v. Yuam, 739 F.2d 160 (4th Cir. 1984),
abrogated on other grounds by Mallard, 490 U.S. 296.
review of the file, the court has determined that there are
no exceptional or unusual circumstances presented at this
time. Plaintiff's claims that he cannot afford counsel,
that the issues in this case are complex, and that he has
limited knowledge of the law, do not present an extraordinary
circumstance. Plaintiff has prosecuted this case capably thus
far. Plaintiff also claims that he has a mental disability
for which he takes medication. However, Plaintiff has not
provided any specific explanation as to what mental
disability he has or how it affects his ability to prosecute
this case. Accordingly, Plaintiff's motion requesting
counsel under 28 U.S.C. § 1915(e)(1) is denied.
TO AMEND THE COMPLAINT:
moves to amend his complaint. (ECF Nos. 23, 37, & 43.)
Defendants oppose the motions on the ground that Plaintiff
has not provided a proposed amended complaint. (ECF No. 27.)
Pursuant to Federal Rule of Civil Procedure 15(a)(2), the
court finds that justice requires Plaintiff be given leave to
amend his complaint. Thus, Plaintiff's motions to amend
are granted. Plaintiff must file an Amended Complaint
within fourteen (14) days from the date this order is entered
(plus three days for mail time).
is warned that an amended complaint will replace the original
complaint, including any allegations or claims raised in
motions to amend or supplements already filed with the court.
Thus, the amended complaint must be complete within
itself, and must include all of the facts, claims, and
parties Plaintiff intends to pursue in this action in one
document. See Young v. City of Mount
Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“As a
general rule, an amended pleading ordinarily supersedes the
original and renders it of no legal effect.”) (internal
quotation marks omitted); 6 Charles Alan Wright & Arthur
R. Miller, Federal Practice & Procedure §
2682 (3d ed. 2018).
order dated March 27, 2019, the court authorized the issuance
and service of process of the original complaint in this
matter. (ECF No. 12.) However, the summonses for Defendants
Officer Ellis and Officer Jones were returned as unexecuted.
(ECF No. 33.) The returned Forms USM-285 reflect that
SCDC's Office of General Counsel could specifically
identify these defendants because there is more than one
Officer Jones and Officer Ellis.
is directed to complete and return summonses and Forms
USM-285 for Officer Jones and Officer Ellis within fourteen
(14) days from the date this order is entered (plus three
days for mail time), listing a current address where the
defendant may be served. These documents must be
mailed to: Clerk of Court, 901 Richland Street, Columbia,
South Carolina 29201.
is reminded that he must provide, and is responsible for,
information sufficient to identify the defendant on the Form
USM-285. The United States Marshal cannot serve an
inadequately identified defendant. No. process shall issue as
to these defendants until the items specified above have been
reviewed by the assigned Magistrate Judge. Failure to comply
may result in dismissal of these defendants pursuant to Rule
4(m) of the Federal Rules of Civil Procedure for failure to
THE CLERK OF COURT :
Clerk shall mail a copy of this order, a blank summons, and
four Forms USM-285 to Plaintiff. If Plaintiff fails
to provide the items specified above to the Clerk of Court
within the period prescribed in this order, the Clerk of
Court shall forward the file to the assigned United States
Magistrate Judge for a recommendation. See In Re:
Procedures in Civil Actions Filed by Non-Prisoner Pro Se
Litigants, No. 3:07-mc-5015-JFA. If, however, Plaintiff