United States District Court, D. South Carolina, Beaufort Division
Timothy M. Cain United States District Judge
Lawrence Lamont Ingram, a state inmate proceeding pro se,
filed this action alleging claims pursuant to 42 U.S.C.
§ 1983. (ECF No. 1). By order dated May 10, 2019, the
magistrate judge gave Plaintiff an opportunity to provide the
necessary information and paperwork to bring this case into
proper form for evaluation and possible service of process,
and to correct deficiencies in his pleading. (ECF No. 9).
After Plaintiff did not respond to the order and the time to
do so had run, the magistrate judge entered a report and
recommendation (“Report”) recommending that the
court dismiss this case, without prejudice, for failure to
prosecute pursuant to Rule 41 of the Federal Rules of Civil
Procedure. (ECF No. 12). Plaintiff was advised of his right
to file objections to the Report. Id. at 4. Rather
than file objections, Plaintiff has filed a motion for the
appointment of counsel. (ECF No. 14).
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). In the absence of objections, this court is not
required to provide an explanation for adopting the Report.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983). Rather, “in the absence of a timely filed
objection, a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.” Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
Furthermore, failure to file specific written objections to
the Report results in a party's waiver of the right to
appeal the district court's judgment based upon that
recommendation. 28 U.S.C. § 636(b)(1); Thomas v.
Arn, 474 U.S. 140 (1985); Wright v. Collins,
766 F.2d 841 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984).
noted above, instead of filing objections or complying with
the court's prior proper form order, Plaintiff filed a
motion for the appointment of counsel. (ECF No. 14).
“[I]n civil actions the appointment of counsel should
be allowed only in exceptional cases.” Cook v.
Bounds, 518 F.2d 779 (4th Cir.1975) (citation omitted).
An exceptional circumstance exists if a “pro se
litigant has a colorable claim but lacks the capacity to
present it.” Gordon v. Leeke, 574 F.2d 1147,
1153 (4th Cir. 1978). This is not one of those exceptional
cases justifying the appointment of counsel. See
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984)
(noting that power to appoint counsel is discretionary),
disapproved on other grounds by Mallard v. United States
Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 300
(1989). In his motion, Plaintiff alleges that he cannot
afford counsel and he has made repeated efforts to obtain
counsel. (ECF No. 14 at 1). He also contends that his claims
are complex and that his incarceration limits his access to a
law library and ability to research and investigate.
Id. While the court expresses no opinion as to the
merits of Plaintiff's claims, it appears from his filings
that Plaintiff has the capacity to present them. (ECF Nos. 1,
14). Accordingly, the court declines to appoint counsel for
thorough review of the Report and the record in this case,
the court adopts the Magistrate Judge's Report (ECF No.
12) and incorporates it herein. Accordingly, this action is
DISMISSED without prejudice. Additionally,
Plaintiff's motion to appoint counsel (ECF No. 14) is
IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this Order
within the time period set forth under Rules 3 and 4 of the
Federal Rules of Appellate Procedure.
In accordance with 28 U.S.C. §
636(b) and Local Rule 73.02(B)(2), D.S.C., all pre-trial
proceedings were referred ...