United States District Court, W.D. Tennessee, Western Division
ORDER ON PENDING MOTIONS AND SEVERING AND
TRANSFERRING CERTAIN CLAIMS PURSUANT TO PURSUANT TO 28 U.S.C.
D. TODD UNITED STATES DISTRICT JUDGE.
6, 2016, Plaintiff William Davidson Hamby, Jr.
(“Hamby”), an inmate who is currently
incarcerated at the Morgan County Correctional Complex
(“MCCX”), in Wartburg, Tennessee, filed a pro
se complaint pursuant to 42 U.S.C. § 1983 in the
U.S. District Court for the District of Delaware. (ECF No.
1.) The original complaint concerns Hamby's previous
incarcerations at the Deberry Special Needs Facility
(“DSNF”) in Nashville, Tennessee and the West
Tennessee State Penitentiary (“WTSP”) in Henning,
Tennessee. On May 23, 2016, U.S. District Judge Richard G.
Andrews transferred the case to this district. (ECF No. 4.)
At some point, Hamby was transferred to the MCCX. After he
filed the necessary financial documentation, this Court
granted leave to proceed in forma pauperis and
assessed the civil filing fee pursuant to the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C.
§§ 1915(a)-(b). (ECF No. 14.)
original complaint, Hamby sued WTSP physician Dr.
Benitez; DSNF physician Dr. Molly O'Toole; WTSP
Nurse Sanders; and Corizon Health, Inc.
(“Corizon”). However, on June 3, 2016, Hamby
filed a motion to amend to remove Defendants Sanders and
Benitez from this action. (ECF No. 5.) That motion is
GRANTED; therefore, Defendants Hernandez/Benitez and Sanders
are dismissed from this action. The only claims left that may
concern events occurring at the WTSP are against
20, 2016, Hamby filed a “Motion to Cease &
Desist” which concerned his property being held at the
WTSP while he was temporarily at the Riverbend Maximum
Security Institution. (ECF No. 9.) As Hamby is no longer at
either of those institutions, the motion is DENIED as moot.
On August 11, 2016, Hamby filed a motion asking the Court to
waive “court fees.” (ECF No. 21.) That motion is
also DENIED. The filing fee in this case was assessed in
installments pursuant to the statutory authorization of the
PLRA, and the fact that Hamby is alleging his health and life
are in danger is not a sufficient reason to waive that
filed a motion for summary judgment on September 6, 2016,
with regard to Defendant O'Toole on the ground that she
failed to answer the complaint. (ECF No. 26.) Similar motions
for summary judgment alleging default were filed with regard
to specific Defendants named in various amendments (ECF Nos.
39 & 51) and with regard to all Defendants (ECF No. 60).
Those motions are DENIED. No Defendant is in default because
it has not yet been ordered that any process should be served
in this matter.
September 15, 2016, Hamby filed a motion asking that the U.S.
Marshal be directed to serve certain Defendants with a
warrant for violation of a federal order directing
Hamby's immediate transfer. (ECF No. 29.) That motion is
DENIED because no such order for immediate transfer has been
filed a motion for appointment of counsel on October 3, 2016.
(ECF No. 34.) Pursuant to 28 U.S.C. § 1915(e)(1),
“[t]he court may request an attorney to represent any
person unable to afford counsel.” However, “[t]he
appointment of counsel in a civil proceeding is not a
constitutional right.” Lanier v. Bryant, 332
F.3d 999, 1006 (6th Cir. 2003); see also Shepherd v.
Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he
plaintiffs were not entitled to have counsel appointed
because this is a civil lawsuit.”); Lavado v.
Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (no
constitutional right to counsel in a civil case); Farmer
v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) (“There
is no constitutional or . . . statutory right to counsel in
federal civil cases . . . .”). Appointment of counsel
is “a privilege that is justified only by exceptional
circumstances.” Lavado, 992 F.2d at 606
(internal quotation marks and citation omitted). “In
determining whether ‘exceptional circumstances'
exist, courts have examined the type of case and the
abilities of the plaintiff to represent himself. This
generally involves a determination of the complexity of the
factual and legal issues involved.” Id. at 606
(internal quotation marks and citations omitted). Appointment
of counsel is not appropriate when a pro se
litigant's claims are frivolous or when his chances of
success are extremely slim. Id. (citing Mars v.
Hanberry, 752 F.2d 254, 256 (6th Cir. 1985)); see
also Cleary v. Mukasey, 307 F. App'x 963, 965 (6th
Cir. 2009) (same).
has not demonstrated that the Court should exercise its
discretion to appoint counsel. Nothing in his motion serves
to distinguish this case from the many other cases filed by
pro se prisoners who are not trained attorneys and
who have limited access to legal materials. Therefore, the
motion for appointment of counsel is DENIED.
October 5, 2016, Hamby filed a motion “for
Constitutional Tort Against Defendant's Wages, ”
part of which asks for garnishment of the Defendants'
wages and bank accounts. (ECF No. 40.) He filed a
similar motion on October 5, 2016, seeking to freeze or seize
the Defendants' bank accounts. (ECF No. 42.) To the
extent these motions seek immediate garnishment or seizure of
the Defendants' assets, they are DENIED as improper.
Hamby has been awarded no judgment, monetary or otherwise,
against any Defendant.
has also sought discovery in certain motions or portions of
motions. (ECF Nos. 20, 52, 59.) As no Defendant has been
served, discovery in this case is premature. Therefore, to
the extent these motions seek discovery, they are DENIED.
his transfer to the MCCX, Hamby also has filed numerous
motions concerning his treatment at that facility. Many of
the motions seek to amend the complaint in order to add
claims and/or additional Defendants or demand additional
compensatory relief. (ECF Nos. 17, 20, 22, 24, 25, 32, 37,
40, 41, 45, 49 & 52.) Hamby also filed an amended
complaint on August 15, 2016, adding a Defendant. (ECF No.
22.) To the extent the listed motions seek to add claims or
demand additional relief against new identified Defendants,
they are GRANTED. However, to the extent the motions seek to
add claims against unknown individuals, they are
DENIED. Accordingly, the Clerk is directed to add
the following persons as additional Defendants: Dr. Niner;
Dr. Spall; MCCX Warden Shawn Phillips; Associate Warden Gary
Hamby; Counselor Ms. Buchanan; IRC Bell; Counselor Crass (or
Krass); Classification Coordinator Mahoney; TDOC Commissioner
Tony Parker; Ms. Ridenour of Internal Affairs; Neysa Taylor;
Dr. Marina Cadreche, TDOC Assistant Commissioner of
Rehabilitative Services; Dr. Kenneth Williams, TDOC Medical
Director; MCCX Health Administrator Ms. Lenndy; Head Nurse
Jenner; Corporal Robinson; Correctional Officer Mason; Unit
Manager Rathers; Warden of Treatment Jeff Nance; and Unit
other motions or portions of motions concerning Hamby's
confinement at the MCCX seek various types of preliminary
injunctive relief, including immediate and/or specific
medical care, placement in protective custody, transfer or
release, an order directing the filing of criminal charges
against specific Defendants, federal takeover of the MCCX
medical department, etc. (ECF Nos. 13, 17, 18, 19, 23, 24,
28, 30, 35, 36, 38, 42, 44, 45, 46, 47, 49, 50, 53, 54, 56,
57, & 58.) However, the Court has considered the
applicable factors for granting injunctive relief and finds
that all of the motions for injunctive relief should be and
are hereby DENIED.
Hamby's motions to ascertain the status of the case (ECF
Nos. 48 ...