TAYLOR v. ARRESTING OFFICER

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARIO DEANDRE TAYLOR, )
)
Plaintiff, )
)
v. ) 1:25CV571
)
ARRESTING OFFICER, )
)
Defendant(s). )
ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner formerly convicted in his Court, submitted a letter stating that
he seeks to file a civil rights action against an officer who arrested him. He seeks advice
on how to file the case and requests an appointment of counsel. The Court cannot give
legal advice. Out of an abundance of caution, the Court treated Plaintiff’s filing as a civil
rights action pursuant to 42 U.S.C. § 1983. So treated, the form of the Complaint is such
that serious flaws make it impossible to further process the Complaint. The problems are:
1. The filing fee was not received nor was a proper affidavit to proceed in forma
pauperis submitted, with sufficient information completed and signed by
Plaintiff, to permit review.
2. The Complaint is not on forms prescribed for use by this Court, nor is the
information requested by such forms and necessary to process the Complaint
pursuant to 28 U.S.C. § 1915A contained in Plaintiff’s submission. See LR
7.1(d).
Consequently, the Complaint should be dismissed, but without prejudice to Plaintiff
filing a new complaint, on the proper § 1983 forms, which corrects the defects of the
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present Complaint. To further aid Plaintiff, the Clerk is instructed to send Plaintiff new
§ 1983 forms, instructions, an application to proceed in forma pauperis, and a copy of
pertinent parts of Fed. R. Civ. P. 8 (i.e., Sections (a) & (d)).
As for the request for counsel, under 28 U.S.C. § 1915(e)(1), “[t]he court may
request an attorney to represent any person unable to afford counsel.” However, “a plaintiff
does not have an absolute right to appointment of counsel.” Miller v. Simmons, 814 F.2d
962, 966 (4th Cir. 1987). Instead, appointment of counsel is “a matter within the discretion
of the District Court. It is a privilege and not a right.” Bowman v. White, 388 F.2d 756,
761 (4th Cir. 1968). In considering a request for appointment of counsel, the United States
Court of Appeals for the Fourth Circuit has held that a litigant “must show that his case is
one with exceptional circumstances.” Miller, 814 F.2d at 966 (citing Cook v. Bounds, 518
F.2d 779, 780 (4th Cir. 1975)). “The question of whether such circumstances exist in any
particular case hinges on characteristics of the claim and the litigant.” Whisenant v. Yuam,
739 F.2d 160, 163 (4th Cir. 1984), abrogated in part on other grounds, Mallard v. United
States Dist. Ct. for S.D. of Iowa, 490 U.S. 296 (1989) (holding that §1915 does not
authorize compulsory appointment of counsel). The Court “must conduct a fact specific,
two-part inquiry to assess whether a case presents exceptional circumstances before it
decides whether to appoint counsel. That inquiry requires the court to determine (1)
whether the plaintiff ‘has a colorable claim’ and (2) considering the claim’s objective
complexity and the plaintiff's subjective abilities, whether the plaintiff ‘lacks the capacity
to present it.’” Jenkins v. Woodard, 109 F.4th 242 (4th Cir. 2024).
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After reviewing the present case in light of these standards, the Court notes first that
the request for counsel is premature, as Plaintiff has not yet filed his claims on the proper
forms. Also, to the extent Plaintiff describes his claims, they are straightforward and not
particularly complex. In the circumstances, the Court concludes that there is no basis to
appoint counsel in this matter at this time. If Plaintiff files his claims on the proper forms,
which will be provided to him, he may also file a separate motion seeking counsel if he
believes he can meet the standards just set out.
In forma pauperis status is granted for the sole purpose of entering this Order and
Recommendation.
IT IS THEREFORE ORDERED that Plaintiff’s request for counsel is denied
without prejudice and that in forma pauperis status is granted for the sole purpose of
entering this Order and Recommendation. The Clerk is instructed to send Plaintiff § 1983
forms, instructions, an application to proceed in forma pauperis, and a copy of pertinent
parts of Fed. R. Civ. P. 8 (i.e., Sections (a) & (d)).
IT IS RECOMMENDED that this action be dismissed sua sponte without prejudice
to Plaintiff filing a new complaint, on the proper § 1983 forms, which corrects the defects
cited above.
This, the 20th day of October, 2025.
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