United States District Court, D. Maryland
JOHN W. FALKENSTEIN, Plaintiff
SAM RAHMAN, et al., Defendants
J. MESSITTE, UNITED STATES DISTRICT JUDGE.
filed this action in November 2018, claiming that he was
receiving inadequate medical treatment and requesting that he
be provided with necessary surgery on his shoulder. ECF Nos.
1, 4. Upon this Court's request, the Office of the
Attorney General has submitted documentation that, following
several medical appointments, Plaintiff received the shoulder
surgery on April 8, 2019 at Johns Hopkins Hospital. ECF Nos.
50, 51. Pending before the Court are several of
Plaintiff's Motions that shall now be addressed.
at ECF No. 18 is a self-styled “Motion for Leave to
[File] a Supplement Complaint and Preliminary
Injunction.” A review of the substance of the document
reveals that it is really a Reply objecting to arguments
presented in the Office of Attorney General's Response to
this Court's show cause Order, rather than a Motion.
See ECF No. 5, 9. Nonetheless, Plaintiff
subsequently requested that ECF No. 18 be treated as a
Supplement to the Complaint. ECF No. 42 at 1. Accordingly, to
the extent Plaintiff is moving for ECF No. 18 to be treated
as a Supplemental Complaint, the Motion is granted. However,
to the extent the Motion seeks other relief, it is denied.
Plaintiff filed a Motion for Voluntary Dismissal, which
contained some erroneous statements regarding the filing fee.
ECF No. 26. The Court advised Plaintiff of the errors,
granted him 28 days to inform the Court if he still wished to
withdraw this action, and temporarily suspended collection of
the filing fee while Plaintiff decided. ECF No. 29. After
equivocating on whether he still wished to voluntarily
dismiss his action, ECF No. 34, Plaintiff indicated that he
wished to withdraw his Motion for Voluntary Dismissal and
continue the action, ECF No. 42 at 4. Accordingly, the Motion
for Voluntary Dismissal shall be denied and Plaintiff's
obligations to continue paying the filing fee will resume.
has also requested appointment of counsel, citing his
“fluctuating physical ability.” ECF No.
A federal district court judge's power to appoint counsel
under 28 U.S.C. § 1915(e)(1),  is a discretionary one, and
may be considered where an indigent claimant presents
exceptional circumstances. See Miller v. Simmons,
814 F.2d 962, 966 (4th Cir. 1987); Cook v. Bounds,
518 F.2d 779 (4th Cir. 1975); see also Branch v.
Cole, 686 F.2d 264 (5th Cir. 1982). Exceptional
circumstances exist where 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). Plaintiff has already filed a thorough Complaint,
extensive and detailed motions, and other correspondence.
Although the Court recognizes that Plaintiff's physical
condition may impact his ability to litigate going forward,
Plaintiff has in fact already presented a colorable claim.
Therefore, the Court will deny the Motion for Counsel at this
time. However, this denial is without prejudice to
Plaintiff's ability to seek counsel again in the future
at an appropriate time (such after Defendants respond to
at ECF No. 35 is Plaintiff's self-styled “Motion
for a Finding of Contempt and Enforcement for Further
Relief.” Plaintiff asks that this Court order that his
shoulder surgery be performed. This request is now moot. He
also asks that the Court sanction Defendants for allegedly
failing to comply with a prior order of this Court. ECF No.
35 at 1. Specifically, he claims that in its January 15, 2019
Order, ECF No. 14, the Court ordered Sam Rahman “to
provide the mandatory total left shoulder revision
replacement surg[e]ry on or before February 08,
2019.” ECF No. 35 at 1. The Court's Order did not,
in fact, direct Rahman (or any Defendant) to do this. Rather,
the Court noted that it was denying Plaintiff's Motion
for Injunctive Relief based on the representations of the
Office of the Attorney General that Plaintiff was scheduled
to have his surgery on or before February 8, 2019. ECF No. 14
at 1. The Court stated that Plaintiff would be able to refile
his Motion for Injunctive Relief if the scheduled procedure
did not occur by that date. Id. Accordingly no
contempt finding is warranted, and this Motion shall be
in his Motion docketed at ECF No. 42, Plaintiff makes a
number of requests, some of which shall be granted. Plaintiff
notes that he would like to preserve his right to a jury
trial, which the Court acknowledges and will consider the
request to have been asserted in his Complaint. ECF No. 42 at
1. The Court notes, however, that preserving a right to jury
trial does not guarantee that his case will in fact proceed
to a jury trial; rather, it means that if the case does make
it to trial (i.e., past any preliminary motions and
without an agreed settlement from the parties), the case will
be heard by a jury.
Plaintiff requests that his Motion for Preliminary
Injunction, the accompanying exhibits, and his
“Amendment and Supplement” be considered part of
his Complaint. Id. Because Defendants have not yet
responded to the Complaint, it does not appear that granting
this request would prejudice them in any way. Accordingly,
the ECF Nos. 4 and 18 will be treated as Supplemental
Complaints. However, his subsequent request in ECF No. 42
that “all Exhibits filed in all Motions in this Civil
Action No. PJM-18-3715 is a part of the Pleadings for all
purposes” is denied because the Court concludes that it
would be overly burdensome.
also requests copies of various documents and the docket
sheet. ECF No. 42 at 5-6 (requesting copies of ECF No. 11-2,
ECF No. 18, and ECF No. 35). This request is moot because the
copies were provided pursuant to the Court's March 27,
2019 Order. ECF No. 45 at 2. In addition, Plaintiff
requests a copy of ECF 42 itself. In the Court's March 27
Order, it noted that it would no longer provide him with free
copies of every document. Id. However, because
Plaintiff did not have knowledge of the Court's directive
at the time he mailed his Motion, the Court will provide a
copy of ECF No. 42.
also requests that this Court waive the filing fee and refund
the portion of the fee already paid, claiming that this is
justified because some of his documents have been lost. ECF
No. 42 at 4-5. This is not the first time that Plaintiff has
asked for a waiver of all fees. ECF 31 at 2 (requesting that
his filing fee “be dismissed, ”); see
also ECF Nos. 27, 36, 43 (requesting
“waiver” of his filing fees pursuant to
Fed.R.Civ.P. 24, which is not applicable here, though the
Court assumes Plaintiff is referring to Federal Rule of
Appellate Procedure 24). The Court cannot waive
Plaintiff's entire filing fee, which is required by
statute to be collected where a prisoner brings a civil
action. The relevant statute states:
if a prisoner brings a civil action or files an appeal in
forma pauperis, the prisoner shall be required to
pay the full amount of a filing fee. The court shall assess
and, when funds exist, collect, as a partial payment of any
court fees required by law, an initial partial filing fee of
20 percent of the greater of-
(A) the average monthly deposits to the prisoner's
(B) the average monthly balance in the prisoner's account
for the 6-month period immediately preceding the filing of
the complaint or notice of appeal.
(2) After payment of the initial partial filing fee, the
prisoner shall be required to make monthly payments of 20
percent of the preceding month's income credited to the
prisoner's account. The agency having custody of the
prisoner shall forward payments from the prisoner's
account to the clerk of the court ...