Opinion
C/A No. 9:21-00523-RMG-MHC
06-21-2021
John Ervin Wilson, Jr., #295493 Plaintiff, v. Ofc Givens, Lt. Riggins, Capt. Smith, Major Commander, Dr. Burnham, RN Williams, Capt. Goodwin, Nurse Jackson, Lt. Summers, and Norwood, Defendants.
REPORT AND RECOMMENDATION AND ORDER
Plaintiff, a state prisoner who is proceeding pro se, has filed this action against Defendants, alleging a violation of his constitutional rights under 42 U.S.C § 1983. ECF No. 1. Before the Court is Plaintiff's Motion for a Stay or, in the alternative, to Appoint Counsel ("Motion"). ECF No. 38. Defendants filed a Response in Opposition to the Motion. ECF No. 39.
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2), DSC, this matter was referred to the undersigned for pretrial handling. Because the Motion requests injunctive relief, it is dispositive, and this Report and Recommendation is entered for the District Judge's consideration.
In his Motion, Plaintiff is seeking to remain housed at Kershaw Correctional Institution ("KCI"), within the South Carolina Department of Corrections ("SCDC"), after having learned that he was placed on an "institutional transfer list." ECF No. 38 at 1. Plaintiff contends that witnesses, documents, and videos pertaining to his case are located at KCI, such that a transfer would hinder obtaining declarations, delay production of evidence and risk losing documents and other material. Id. at 1-2. In the alternative, Plaintiff seeks appointment of counsel to assist him with the aforementioned discovery matters.
LEGAL DISCUSSION
The initial relief sought by Plaintiff amounts to a request for a preliminary injunction, as he is seeking this Court to issue an Order to "Defendant Counsel or Warden James" that Plaintiff not be moved and "remain his stay at Kershaw Corr. Inst." ECF No. 38 at 1. As an initial matter, neither defense counsel nor Warden James are parties to this action. Generally, a court "may not enter an injunction against a person who has not been made a party to the case before it." Pew v. Wetzel, No. 3:12-CV-1984, 2015 WL 10474859, at *4 (M.D. Pa. Oct. 30, 2015), report and recommendation adopted, No. 3:12-CV-1984, 2016 WL 948878 (M.D. Pa. Mar. 14, 2016) (quoting Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 96 F.3d 1390, 1394 (Fed. Cir. 1996)); see also Abdullah-Malik v. Bryant, No. 1:14-cv-109-RBH, 2015 WL 225740, at *3 (D.S.C. Jan. 16, 2015) ("[T]o the extent [Plaintiff] seeks to enjoin persons who are not parties to this lawsuit, Plaintiff's motion is improper."); U.S. Commodity Futures Trading Comm'n v. Amaranth Advisors, LLC, 523 F. Supp. 2d 328, 334-35 (S.D.N.Y. 2007) (denying defendant's motion for a preliminary injunction against the Federal Energy Regulatory Commission because it was not a party to the suit and it was not an "officer, agent, servant, employee, or attorney" of any party). Accordingly, to the extent Plaintiff seeks to enjoin persons who are not parties to this lawsuit, the Motion should be denied.
Moreover, to the extent Plaintiff seeks relief against any Defendant, the Motion is inappropriate because the injunction seeks "relief that is not requested [in the Complaint] or at all related to the remaining claims." Pew, 2015 WL 10474859, at *3 (citation and internal quotation marks omitted); see Devised v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (holding that plaintiff was not entitled to a preliminary injunction where motion raised issues entirely different from those presented in plaintiff's complaint); Spencer v. Stapler, No. 04-1532, 2006 WL 2052704, at *9 (D. Ariz. July 21, 2006) ("Plaintiff's motion [for injunctive relief] concerns events that are unrelated to the subject of his complaint and that concerns conduct of persons other than the defendants. Plaintiff's request will therefore be denied."); Westbank Yellow Pages v. BRI, Inc., No. 96-1128, 1996 WL 255912, at *1 (E.D. La. May 13, 1996) ("A preliminary injunction is not an appropriate vehicle for trying to obtain relief that is not even sought in the underlying action."). In his Motion, Plaintiff seeks an order to enjoin anyone from moving him to a different facility. The claims in his Complaint, however, pertain to alleged excessive force and denial of medical treatment. ECF No. 1 at 6. Because Plaintiff is seeking relief that does not pertain to the claims asserted in his Complaint, the Motion should be denied.
Finally, even if Plaintiff had sought in his Complaint to remain at KCI, the undersigned notes that "a preliminary injunction is an extraordinary remedy, to be granted only if the moving party clearly establishes entitlement to the relief sought." Fed. Leasing, Inc. v. Underwriters at Lloyd's, 650 F.2d 495, 499 (4th Cir. 1981). To obtain a preliminary injunction, Plaintiff must demonstrate: (1) that he is likely to succeed on the merits of his claims, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. Winter v. Natural Resources Defense Council., Inc., 555 U.S. 7, 20 (2008).
Here, Plaintiff cannot meet his burden, if for no other reason than prisoners "have no constitutional right to be housed in a particular correctional institution, in a particular unit of an institution, or at a particular custody level." Al-Haqq v. Scarborough, No. 2:17-cv-534-TMC-MGB, 2017 WL 6033049, at *6 (D.S.C. Nov. 16, 2017), report and recommendation adopted, No. 2:17-CV-00534-TMC, 2017 WL 6026345 (D.S.C. Dec. 5, 2017) (citing Olim v. Wakinekona, 461 U.S. 238, 245-48 (1983)). The Supreme Court has explained that the "decision where to house inmates is at the core of prison administrators' expertise." McKune v. Lile, 536 U.S. 24, 39 (2002). Plaintiff has not established such exceptional circumstances that would warrant the extraordinary relief of interfering with SCDC operations and decisions regarding housing of inmates.
As for Plaintiff's alternative request for appointment of counsel, there is no constitutional right to counsel in a civil case brought pursuant to 42 U.S.C. § 1983. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); see Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25-27 (1981). While the Court is granted the power to exercise its discretion to request appointment of counsel for an indigent in a civil action, 28 U.S.C. § 1915(e)(1); Smith v. Blackledge, 451 F.2d 1201, 1203 (4th Cir. 1971), such appointment "should be allowed only in exceptional cases," Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975).
Upon review of the file and the arguments presented, the Court has determined that there are no exceptional or unusual circumstances presented at this time that would justify the appointment of counsel, nor would Plaintiff be denied due process if an attorney were not appointed. See Whisenant v. Yuam, 739 F.2d 160 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296 (1989). Accordingly, Plaintiff's alternative request for appointment of counsel is denied at this time.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Plaintiff's Motion for a Stay (ECF No. 38) be DENIED and ORDERED that Plaintiff's alternative request for appointment of counsel is DENIED.
The parties are referred to the Notice Page attached hereto. June 21, 2021
Charleston, South Carolina
/s/_________
Molly H. Cherry
United States Magistrate Judge
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n 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 & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such 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).