United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
Eddie Murphy brings suit against Defendants Colin Ottey and
Jennifer Giles, medical staff at the North Branch
Correctional Institution ("NBCI"), for violations
of his rights under the Eighth Amendment, alleging that
Defendants failed to provide adequate medical treatment on
February 26, 2013 after Plairtiff was pepper-sprayed by
correctional officers while Plaintiff attempted to hang
himself. ECF No. 1. Presently pending before the Court are
Defendants' Motion to Stay and Motion for Costs, ECF No.
27, Defendants' Motion to Dismiss, or in tie Alternative,
Motion for Summary Judgment, ECF No. 34, and Plaintiffs
Motion to Appoint Counsel. ECF No. 30. No hearing is
necessary. Loc. R. 105.6 (D. Md. 2016). For the following
reasons, Defendants' Motion for Stay is granted, and
Plaintiffs Motion is denied.
Motion to Stay and Motion for Costs
August 22, 2013, Plaintiff filed suit against Defendants, as
well as other NBCI correctional officers, alleging violations
of his civil rights stemming from the February 26, 2013
incident. See Murphy v. Rounds, et al, Civil Action
No. WDQ-13-2480 (D. Md. 2013). On December 17, 2013,
Defendants filed a Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment in that matter. WDQ-13-2480, ECF
No. 20. Subsequent to the filing of Defendants'
dispositive motion, Plaintiff moved to withdraw his Complaint
without prejudice, explaining that he wanted to pursue the
case after he retained counsel or was released from
incarceration. WDQ-13-2480, ECF No. 30. The Court granted
the motion but cautioned Plaintiff that pursuant to
Fed.R.Civ.P. 41 (d), if Plaintiff later commenced "an
action based upon or including the same claim against
Defendants, the Court may make such order for the payment of
the costs of the action previously dismissed as it may deem
proper and may stay the proceedings in the action until he
has complied with the order." WDQ-13-2480, ECF No. 31.
has refiled here virtually the identical Complaint he filed
against Defendants in his prior case; thus, consistent with
the Court's Order, Defendants now seek their costs and a
stay of this matter. In their Motion for Costs and Motion to
Stay, ECF No. 27, Defendants assert that they incurred costs
of $3, 783.35 in the 2013 action. ECF No. 27 at 2 ¶5.
Defendants contend that this matter should be stayed until
they are reimbursed for their costs related to the previous
matter. Defendants Motion to Stay is granted. Additionally,
Plaintiff has 28 days from the date of this Memorandum
Opinion to show cause why Plaintiff should not be required to
pay $3, 783.35 for the costs Defendants previously incurred
in Civil Action No. WDQ-13-2480. In the event Plaintiff does
not timely respond to this Order, this case may be dismissed
with prejudice without further notice from the Court.
Motion for Appointment of Counsel
pro se prisoner does not have a general right to counsel in a
§ 1983 action.'" Evam v. Kuplinski,
Fed.Appx., __, 2017 WL 5513206, at *2 (4th Cir. Nov. 17,
2017). A federal district court judge's power to appoint
counsel under 28 U.S.C. § 1915(e)(1) is discretionary,
and an indigent claimant must present "exceptional
circumstances." See Kuplinski, Id. at *2;
Milter \. Simmons, 814 F.2d 962 966 (4th Cir. 1987).
Exceptional circumstances exist where a "pro se litigant
has a colorable claim but lacks the capacity to present
it." See Whisenant v. Yuam, 739 F.2d 160, 163
(4th Cir. 1984), abrogated on other grounds by Mallard v.
U.S. Dist. Ct., 490 U.S. 296, 298 (1989) (holding that
28 U.S.C. § 1915 does not authorize compulsory
appointment of counsel).
filing this motion, Murphy has been released from prison. The
record does not indicate whether he has secured employment or
attempted to retain an attorney. Upon close consideration of
the moiions and previous filings by Murphy pro se, the Court
finds that he has demonstrated the ability:o articulate the
legal and factual basis of his claims himself or secure
meaningful assistance in doing so. Further, the issues are
not unduly complicated. Therefore, there are no exceptional
circumstances that would warrant the appointment of an
attorney to represent Murphy at this time.
Motion to Stay and Motion for Costs, ECF No. 27, shall be
granted, in part, and Plaintiffs Motion to Appoint Counsel,
ECF No. 30, shall be denied. A separate Order follows.
The Court previcusly entered
judgment in favor of the North Branch Correctional
Institution Correctional Officer defendants on March 30,
2017. ECF No. 30. Because the action remained pending as to
the two named Defendants herein, the Fourth Circuit dismissed
Plaintiffs appeal ...