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Lake v. Woods

United States District Court, D. South Carolina

May 7, 2019

Kentwan Laquintta Lake, Plaintiff,
v.
Mary E. Woods; Ms. Buker; Lt. Hunt; Ofc. Jones; Ofc. Ellis; Lt. Dalton, Defendants.

          ORDER

          Paige J. Gossett UNITED STATES MAGISTRATE JUDGE

         This is 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.

         REQUEST FOR THE APPOINTMENT OF COUNSEL:

         Plaintiff 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.

         Upon 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.

         MOTION TO AMEND THE COMPLAINT:

         Plaintiff 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).[1]

         Plaintiff 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).[2]

         SERVICE OF PROCESS:

         By 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.

         Plaintiff 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.

         Plaintiff 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 serve.[3]

         TO THE CLERK OF COURT :

         The 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 provides ...


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