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Zeller v. Jordan

United States District Court, D. Maryland

August 22, 2019

DAVID ZELLER, Plaintiff,



         Plaintiff 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.


         I. The Complaint

         On June 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.

         Zeller 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.

         II. Amendments

         After 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.

         The 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.

         As 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 JCI. See (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 injunctive relief).


         I. Motion for Appointment of Counsel

         On 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.

         Zeller 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. ...

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