TERRENCE W. BOYLE, District Judge.
This matter is before the court on the Order and Memorandum and Recommendation ("Order and M&R") of United States Magistrate Judge Robert T. Numbers, II, pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b). D.E. 14. The court ADOPTS the Order and M&R. Additionally, the court allows Seba's request to amend his Complaint to add parties and claims to the lawsuit in the manner set out below.
On February 22, 2016, plaintiff Joseph C. Seba ("Seba"), a state inmate proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983 against Central Prison Warden Carlton Joyner and three unnamed Central Prison staff members (D.E. 1). On that date, Seba also filed a motion to appoint counsel (D.E. 3). Seba seeks monetary damages as well as declaratory and injunctive relief for injuries he allegedly suffered as a result of an assault by the unnamed staff members and subsequently, inadequate medical care for the injuries. Additionally, Seba claims he was transferred from Central Prison to Bertie Correctional Institution in retaliation for preparing to file his § 1983 Complaint, which caused him to lose his prison job and be separated by a greater distance from his family in violation of his First Amendment rights.
On July 26, 2016, the court conducted a frivolity review pursuant to 28 U.S.C. § 1915. Judge Numbers ordered that Seba's motion to appoint counsel be denied and that his claims against the unnamed Sergeant, unnamed corrections officer, and unnamed nurse in their individual capacities be allowed to proceed.
As to Seba's claims against the unnamed defendants, Judge Numbers ordered the North Carolina Department of Public Safety ("NCDPS") to provide Seba with documentation that would assist him in identifying the unnamed defendants. Order and M&R, D.E. 14. The NCDPS complied.
In the interim, Seba filed objections to Judge Numbers' Order and M&R.
"The Federal Magistrates Act requires a district court to make a de nova determination of those portions of the magistrate judge's report or specified proposed findings or recommendations to which objection is made."
The court has reviewed the Order and M&R, the record, and the pleadings. As explained below, the court overrules Seba's objections and adopts the findings and conclusions in the Order and M&R.
I. Add Parties to Eighth Amendment Claim
In response to Judge Numbers' Order and M&R, Seba filed an Amended Complaint identifying six individuals who, he claimed, violated his constitutional rights: Ramel Freeman, John Raymond, Chukwudi Amaechi, Jamela Dunbar, DeShone Joyner and Derrick Smith. Am. Compl., D.E. 24. However, in his original Complaint Seba named only three unknown defendants.
II. Objections to the Order and M&R
A. First Amendment Claim
Seba first objects to Judge Numbers' recommendation that his First Amendment retaliation claim against Warden Joyner be dismissed.
Seba argues that Judge Numbers' conclusion was erroneous because Seba meets the criteria for establishing a First Amendment § 1983 claim. Obj. at 1-2. In order to state a First Amendment § 1983 retaliation claim, a plaintiff must establish the following: (1) the plaintiff's speech was protected; (2) the defendant's alleged retaliatory action adversely affected the plaintiff's constitutionally protected speech; and (3) a causal relationship existed between the plaintiff's speech and the defendant's retaliatory action.
Seba argues that his allegations that he sought information from Warden Joyner to prepare his legal action on November 17, 2015, and was transferred to Bertie C.I. on December 7, 2015, are sufficient to satisfy this test. Obj. 1-2. However, this is the same argument he argued in his Complaint.
B. Motion for an Injunction
Next, Seba objects to Judge Numbers' recommendation that his request for declaratory and injunctive relief be dismissed as moot. Obj. at 3. Judge Numbers concluded that Seba's request is moot because he is no longer incarcerated at Central Prison. Order and M&R at 6. "[A]s a general rule, a prisoner's transfer or release from a particular prison moots his claims for injunctive and declaratory relief with respect to his incarceration there."
Seba argues that his case falls within the exception to the mootness doctrine for cases that are "capable of repetition, yet evading review." Obj. at 5. The "capable of repetition, yet evading review" doctrine "applies only in exceptional situations" where "two circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to a cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again."
Finally, Seba alleges that "his claims challenge system wide policies that still apply after his transfer." Obj. at 5-6. He states that he believes that the excessive force he complains of is "likely to occur again to [him] no matter where he is incarcerated." Obj. at 5. However, there is no system wide "policy" to injure inmates. An isolated violation cannot support system wide relief.
C. Claims Against Defendants in their Official Capacities
Seba objects to Judge Numbers' recommendation that his claims against the defendants in their official capacity be dismissed. Obj. at 6-7. Judge Numbers correctly concluded that as agents of the North Carolina Department of Public Safety, the defendants are entitled to immunity from monetary damages in their official capacities because such suits "are considered suits against the state and are barred by the Eleventh Amendment." Order and M&R at 7.
However, Seba argues that defendants are subject to suit in their official capacities because he is also seeking an injunction.
However, Seba's claim for an injunction fails for at least two reasons. First, Seba has failed to establish the existence of an official policy that violates his constitutional rights. An official capacity lawsuit must allege conduct that is tied to an "official . . . custom or policy, formal or informal."
Second, the defendants Seba has named, all employees of Central Prison, are not in a position to provide the relief requested.
D. Motion for Appointment of Counsel
Seba objects to Judge Numbers' denial of his motion to appoint counsel. Obj. at 7. Judge Numbers concluded that "[w]ith the exception of identifying defendants to the action, this is a relatively routine case alleging constitutional violations by prison staff." Order and M&R at 13.
There is no constitutional right to counsel in civil cases, and court should exercise their discretion to appoint counsel for pro se civil litigants "only in exceptional cases."
In the present case, Judge Numbers allowed several of Seba's claims against unnamed defendants to proceed with the proviso that NCDPS provide Seba with documentation that would assist him in identifying the unnamed defendants. Seba would then be allowed to file an amended complaint that named the appropriate defendants. Judge Numbers concluded that if the State was unwilling or unable to provide the pertinent paperwork, the court would reconsider its denial of Seba's motion for counsel. Order and M&R at 12. NCDPS complied,
Judge Numbers correctly denied Seba's motion to appoint counsel. As Judge Numbers noted, "[p]ro se litigants regularly pursue Eighth Amendment claims in this court and Seba's filings do not demonstrate that his case is more complex than the average case. Additionally, Seba's filings in this matter demonstrate that he is capable of proceeding pro se." Order and M&R at 13. This objection is overruled.
The court ADOPTS the Magistrate Judge's Order and M&R (D.E. 14). Seba's request to amend his Complaint to name additional defendants is ALLOWED.
As ordered by Judge Numbers, Seba may proceed with his Eighth Amendment claims against Ramel Freeman, John Raymond, Chukwudi Amaechi, Jamela Dunbar, DeShone Joyner and Derrick Smith. The Clerk shall manage the action pursuant to Standing Order 14-SO-02. If service on defendants pursuant to the standing order fails, the court DIRECTS the United States Marshal Service to make service pursuant to 28 U.S.C. § 1915(b). As Judge Numbers further ordered, Seba's motion to appoint counsel (D.E. 3) is denied.
With respect to the remainder of Seba's Complaint, his claims against the Defendants in their official capacities are DISMISSED, his claims against Warden Joyner in his individual capacity are DISMISSED, and his claims for declaratory and injunctive relief are DISMISSED.