United States District Court, D. Maryland
DONALD R. PEVIA, Plaintiff
FRANK K. BISHOP, Defendant
L. Hollander, United States District Judge
self-represented plaintiff, Donald R. Pevia, is an inmate at
North Branch Correctional Institution. He has filed a civil
rights suit under 42 U.S.C. § 1983 (ECF 1), supported by
exhibits. The suit is rooted in a First Amendment claim for
violation of Pevia's right to practice his religion.
Id. at 3.
has now filed a Motion for Discovery (ECF 18) and a Motion
For Appointment of Counsel. ECF 19. He indicates that he
needs additional discovery to support his First Amendment
claim and asks that he be provided discovery materials before
the court makes a decision as to defendant's pending
Motion to Dismiss or, in the Alternative, for Summary
Judgment (ECF 13). Plaintiff has opposed that motion. ECF 17.
support of plaintiff's request for discovery, he states
that discovery will verify his claim and demonstrate that
“the Housing Unit was NOT
locked down.” ECF 18 at 1 (emphasis in original). He
specifies that the materials he seeks are: “1. Housing
Unit #2, Tier log sheet for D-Tier from August 10,
2016-October 21, 2016, 2. Housing Unit #2 Tier log sheet for
A and B tier from October 21, 2016 thru December 31,
2016.” Id. at 1-2.
Pevia's Affidavit attached to the discovery motion (ECF
18-1), he characterizes defendant's argument in support
of his motion for summary judgment as being that plaintiff
was denied access to religious programming due to NBCI's
Housing Unit 2 being on lock down. Id. at 1.
Plaintiff disputes that the unit was on lock down and notes
that the housing unit received regular, daily recreation.
Id. But, he concedes that he has submitted a
substantial number of affidavits from Native American inmates
and other religious service inmates who support his claims.
Id. But, he indicates his belief that the requested
material will further show regular institutional movements,
in support of his claims. Id.
Rule of Civil Procedure 56(d) provides:
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or (3) issue any other appropriate order.
summary judgment is inappropriate “where the parties
have not had an opportunity for reasonable discovery.”
E.I. du Pont de Nemours and Co. v. Kolon Industries,
Inc., 637 F.3d 435, 448-49 (4th Cir. 2011). See
Putney v. Likin, 656 Fed. App'x 632, 638-40 (4th
Cir. 2016) (per curiam); McCray v. Maryland Dep't of
Transp., 741 F.3d 480, 483 (4th Cir. 2014). However,
“the party opposing summary judgment ‘cannot
complain that summary judgment was granted without discovery
unless that party has made an attempt to oppose the motion on
the grounds that more time was needed for
discovery.'” Harrods Ltd. v. Sixty Internet
Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting
Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4th Cir. 1996)). To raise adequately the issue
that discovery is needed, the nonmovant typically must file
an affidavit or declaration pursuant to Rule 56(d) (formerly
Rule 56(f)), explaining why, “for specified reasons, it
cannot present facts essential to justify its opposition,
” without needed discovery. Fed.R.Civ.P. 56(d); see
Harrods, 302 F.3d at 244-45 (discussing affidavit
requirement of former Rule 56(f)).
plaintiff has filed an Affidavit in support of his motion, he
has failed to explain how the requested material is necessary
to his claim. This case concerns plaintiff's allegations
that a settlement agreement entered into between plaintiff
and the Department of Public Safety and Correctional Services
was breached, and his First Amendment rights were violated
when he was not able to participate in religious services. In
response to administrative remedy requests filed by
plaintiff, the institution indicated that he was denied
access to religious programming because the facility was on
modified lock down. See, e.g., ECF 1-1 at 7
(stating that as to the three weeks plaintiff complained
about lack of religious services, “the institution was
on modified movement for security reason, in which the entire
HU#2 inmate population could not attend religious
plaintiff notes, in support of his claim, he has provided
numerous affidavits from other inmates denying the
institution was on lock down during the time specified by
plaintiff. See ECF 17-1 at 2-5. Plaintiff has also
provided a daily inmate pass sheet issued during the time in
question. ECF 17-1 at 1. Certainly, plaintiff has access to
his own observations and recollections regarding the lock
down of the facility or housing tiers and may draw on those
to provide his own Affidavit in support of his claims. In
light of the foregoing, it does not appear that the requested
material is necessary to refute the pending dispositive
motion. As such, the request for discovery is denied.
However, plaintiff may file a supplemental opposition, as set
forth in the attached Order.
pending is plaintiff's motion for appointment of counsel.
ECF 19. A self-represented prisoner does not have a general
right to counsel in a § 1983 action. Evans v.
Kuplinski, 713 Fed.Appx. 167, 170 (4th Cir. 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.” Id. at 170; see Miller v.
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) (concluding that 28 U.S.C. § 1915 does not
authorize compulsory appointment of counsel), abrogated on
other grounds by Mallard v. U.S. Dist. Ct., 490 U.S.
296, 298 (1989).
careful consideration of the motions and previous filings by
plaintiff, the court finds that he has demonstrated the
wherewithal either to articulate the legal and factual basis
of his claims himself or secure meaningful assistance in
doing so. Further, the issues pending before the court are
not unduly complicated. Therefore, there are no exceptional