United States District Court, D. Maryland
THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE
David Zeller, an inmate at the Western Correctional
Institution in Hagerstown, Maryland, submitted a handwritten
document to the Court, construed as a Complaint, in which he
has alleged that he was subjected to excessive force by
Defendant Sgt. Robert Jordan on June 5, 2017 at Jessup
Correctional Institution ("JO") in Jessup,
Maryland. Over the next month, Zeller filed three more
writings asserting various allegations. Pending before the
Court is Defendants' Motion to Dismiss the Complaint or,
in the Alternative, Motion for Summary Judgment. Although
Zeller was notified that he may file a memorandum in
opposition to the Motion, he has not done so. Also pending is
Zeller's Motion for Appointment of Counsel. Having
reviewed the submitted materials, the Court finds that no
hearing is necessary to resolve the pending motions.
See D. Md. Local R. 105.6. For the reasons set forth
below, Zeller's Motion for Appointment of Counsel will be
DENIED, and Defendants' unopposed Motion, treated as a
Motion for Summary Judgment, will be GRANTED.
12, 2017, Zeller initiated this action by filing a
handwritten document asserting that on June 5, 2017, after he
had barricaded himself in his cell at JCI by blocking the
door with his wheelchair and bunk bed, Sgt. Jordan
"pushed it back out of [the] way even though I was
pressed with feet against back wall and pushin[g] back to
hold it all against" him. Compl. at 1, ECF No. 1. Zeller
alleged that after Jordan and "Ms. Bertt," later
identified as Defendant CO II Latasha Barrett, entered his
cell, he was beaten slapped, punched, and kicked.
Id. He further alleged that his moisturizing lotion
and therapeutic shampoo were poured over his head, his books
were ripped, his property was scattered, and his shower bag
containing his hygiene products was taken. Zeller does not
specifically assert that either Jordan or Barrett were the
persons who attacked him or destroyed his property or
otherwise identify his assailants.
further alleged that Jordan and his "buddies, cohorts,
[and] cronies" entered his cell a second time in June
2017 while he was sitting in his wheelchair and reading.
Compl. at 4. According to Zeller, Jordan slapped him back and
forth in the face. He also contends, without identifying the
personnel involved, that he was prevented from receiving
medical attention, medical staff refused to treat him, and
his prescribed pain medication was abruptly discontinued.
filing the Complaint, Zeller submitted three more handwritten
documents on June 14, 2017, July 10, 2017, and July 11, 2017.
Although difficult to decipher they appear to provide
additional allegations, some related to the claims in the
Complaint or in other cases filed by Zeller. Under Federal
Rule of Civil Procedure 15, a party may amend the Complaint
once as a matter of course within 21 days after serving it or
within 21 days after the service of a responsive pleading.
Fed.R.Civ.P. 15(a)(1). Any additional amendments require
leave of the court, which should be freely given "when
justice so requires." Fed.R.Civ.P. 15(a)(2). On motion
and reasonable notice," the court may "on just
terms," permit a party to file a "supplemental
pleading" to describe events "that happened after
the date of the pleading to be supplemented."
Fed.R.Civ.P. 15(d). Because ECF No. 2, filed on June 14,
2017, was submitted within 21 days of the original Complaint,
the Court will construe it as an Amended Complaint as of
right. The Court will not grant leave to file the additional
handwritten documents as amendments or supplements to the
Complaint. First, these filings do not qualify as
supplemental pleadings under Rule 15(d) because they do not
simply describe events since the filing of the Complaint
relating to the original allegations. Second, even if
construed as proposed amended complaints, the Amended
Complaint already accepted, ECF No. 2, has identified
additional issues unrelated to the excessive force claim in
the original Complaint. Zeller's propensity to seek to
add new allegations prevents the orderly administration of
justice by not permitting the Court and Defendants to have a
definable pleading upon which to base their actions. The
Court therefore finds that justice does not require, and
indeed weighs against, acceptance of the additional
amendments at this time. Any new proposed amendments in this
case will be governed by the Court's Case Management
Order, ECF No.30.
Amended Complaint, consisting of 11 handwritten pages,
contains portions that are indecipherable. To the extent that
it can be understood, the Amended Complaint alleges that (1)
Jordan and his "goon squads" pushed his bunk out of
the way and beat, kicked, and stomped on him for a fourth
time, and that because Jordan slapped Zeller's head, his
cervical neck is damaged and causes significant pain, Am.
Compl. at 5, ECF No. 2; (2) Jordan's wheelchair was
taken; (3) he had not been seen by medical personnel since
May 11, 2017 despite having swollen ankles and legs and was
not attended to properly; (4) that his library requests have
been limited to one book per week; and (5) Zeller did not
receive a welfare package for May 2017.
relief, Zeller asks for the Court to send two U.S. Marshals
to escort him out of JCI to a facility in which he would feel
safe. Since that filing, Zeller has been transferred out of
(last viewed on July 17, 2019). Accordingly, the request for
such injunctive relief is now moot. See Williams v.
Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (holding that
the transfer of a prisoner mooted his Eighth Amendment claims
for injunctive and declaratory relief); Magee v.
Waters, 810 F.2d 451, 452 (4th Cir. 1987) (holding that
the transfer of a prisoner rendered moot his claim for
Motion for Appointment of Counsel
February 19, 2019, Zeller filed a Motion for Appointment of
Counsel, without specifying in which of his pending cases he
intended to file the Motion. In light of Zeller's
self-represented status and the reasons he provides for his
request for counsel, the Motion was docketed in this matter
and his other pending cases, Zeller v. Wexford,
TDC-17-1425, Zeller v. Choi, TDC-17-2030, Zeller
v. Zhou, PWG-2650, and Zeller v. Wexford,
PWG-17-3136. Zeller's Motions are separately considered
in each case.
requests appointment of counsel in this case because he has
filed many cases in this Court and suffers from mental
illness, making it difficult for him to effectively manage
his litigation. He provides no specific reason why he is
unable to litigate the instant case on his own. "The
court may request an attorney to represent any person"
proceeding in forma pauperis who is "unable to
afford counsel." 28 U.S.C. § 1915(e)(1) (2012). In
civil actions, the Court appoints counsel only in exceptional
circumstances. Cook v. Bounds,518 F.2d 779, 780
(4th Cir. 1975). In doing so, the Court considers "the
type and complexity of the case," whether the plaintiff
has a colorable claim, and the plaintiffs ability to
prosecute the claim. See Whisenant v. Yuam, 739 F.2d
160, 163 (4th Cir. 1984) (citations omitted), abrogated
on other grounds by Mallard v. U.S. Dist. Court for the S.
Dist. of Iowa,490 U.S. 296 (1989). Exceptional
circumstances include a litigant who "is barely able to
read or write," id. at 162, or clearly
"has a colorable claim but lacks the capacity to present
it," Berry v. ...