Charles Torns, Jr. v. MS Dept. of Corrections, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [10-60195 Dismissed as frivolous ] Judge: JLD , Judge: EBC , Judge: JWE Mandate pull date is 01/11/2011; denying motion for ruling on motion filed by Appellant Mr. Charles Torns, Jr. [6583338-2]; dismissing motion to appoint counsel filed by Appellant Mr. Charles Torns, Jr. [6566651-2] [10-60195]

Charles Torns, Jr. v.CasDept. of Corrections, et al MS e: 10-60195 Document: 00511329048

Page: 1 Date Filed: 12/21/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-60195 S u m m a r y Calendar December 21, 2010 Lyle W. Cayce Clerk

C H A R L E S TORNS, JR., P la in t if f -A p p e lla n t v. M I S S I S S I P P I DEPARTMENT OR CORRECTIONS, KATHRYN MCINTYRE, L a w Library Technician for Mississippi Department of Corrections and M i s s i s s i p p i State Penitentiary ILAP; CHRISTOPHER B. EPPS, C O M M IS S I O N E R , MISSISSIPPI DEPARTMENT OF CORRECTIONS; R I C H A R D PAUL PENNINGTON, Director for Mississippi Department of C o r r e c t io n s and Mississippi State Penitentiary ILAP; LAWRENCE KELLY, S u p e r in t e n d e n t for Mississippi State Penitentiary; LARRY C. HARDY, M is s is s ip p i Department of Corrections and Mississippi State Penitentiary ARP C la im s Adjudicator, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Northern District of Mississippi U S D C No. 4:06-CV-75

B e fo r e DENNIS, CLEMENT, and ELROD, Circuit Judges. P E R CURIAM:*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Dockets.Justia.com

Case: 10-60195 Document: 00511329048 Page: 2 Date Filed: 12/21/2010 No. 10-60195 C h a r le s Torns, Jr., filed a civil rights action challenging the conditions of h is confinement in May 2006. Prior to bringing the civil rights action, Torns had a c c u m u la t e d three strikes under 28 U.S.C. § 1915(g). See Torns v. Mississippi D e p 't of Corrections, No. 08-60403 (5th Cir. June 4, 2009) (unpublished). The d is t r ic t court revoked Torns's in forma pauperis (IFP) status, and it dismissed t h e civil rights action when Torns failed to pay the filing fee. S u b s e q u e n t to his release from prison, Torns filed two motions for relief fr o m judgment under Rule 60(b) of the Federal Rules of Civil Procedure. The d is t r ic t court denied these motions. The instant appeal is from the denial of the s e c o n d Rule 60(b) motion. T o r n s has moved for the appointment of counsel on appeal. He asserts t h a t he suffered a stroke and that he is not capable of preparing an appellate b r ie f. Torns also questions the constitutionality of § 1915(g), and he contends t h a t a recently released prisoner should be permitted to proceed with a civil r ig h t s action. P u r s u a n t to Fifth Circuit Rule 42.2, "[i]f upon the hearing of any in t e r lo c u t o r y motion . . . it appears to the court that the appeal is frivolous and e n tir e ly without merit, the appeal will be dismissed." For the reasons discussed b e lo w , we dismiss Torns's appeal and deny the motion for appointment of c o u n s e l. T h e extraordinary relief afforded by Rule 60(b) requires that the moving p a r ty make a showing of unusual or unique circumstances justifying such relief. Pryor v. U. S. Postal Serv., 769 F.2d 281, 286 (5th Cir. 1995). Whether to grant o r deny Rule 60(b) relief is within the sound discretion of the district court. Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). "It is not enough t h a t the granting of relief might have been permissible, or even warranted-- denial must have been so unwarranted as to constitute an abuse of discretion." Id.

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Case: 10-60195 Document: 00511329048 Page: 3 Date Filed: 12/21/2010 No. 10-60195 A s a consequence of his accumulation of three strikes in 2004, Torns was fr o m that point forward barred from bringing a civil action under the IFP p r o v is io n s while he was a prisoner, unless he was under imminent danger of s e r io u s physical injury. See § 1915(g); Baņos v. O'Guin, 144 F.3d 883, 885 (5th C ir .1 9 9 8 ) (stating that "the language of § 1915(g), by using the present tense, c le a r ly refers to the time when the action or appeal is filed or the motion for IFP s t a t u s is made."). Torns's subsequent release from prison did not entitle him to p r o c e e d IFP on an action that he had brought while he was a prisoner subject to t h e three-strikes bar. See Baņos, 144 F.3d at 885; see also Harris v. City of New Y o r k , 607 F.3d 18, 21-22 (2d Cir. 2010) ("Had Congress intended that the three s t r ik e s rule would no longer apply once a prisoner had been released, it would h a v e written the statutory provision differently."). T o the extent that Torns may wish to raise a challenge to the c o n s t it u t io n a lit y of § 1915(g) in the instant appeal, his appeal would be without m e r it . This court has already considered and upheld the constitutionality of § 1915(g). See Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir. 1997). Torns's a p p e a l of the district court's denial of his second Rule 60(b) motion is frivolous a n d it is therefore dismissed. See 5TH CIR. R. 42.2. T h e r e is no automatic right to the appointment of counsel in a section 1983 c a s e . Jackson v. Dallas Police Dep't., 811 F.2d 260, 261 (5th Cir. 1986). Counsel s h o u ld not be appointed in a civil rights action in the absence of "exceptional c ir c u m s t a n c e s ." Id. The instant appeal does not warrant the appointment of c o u n s e l. See id. Accordingly, Torns's motion for the appointment of counsel is d e n ie d , as are all pending motions. A P P E A L DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL D E N I E D ; ALL PENDING MOTIONS DENIED.

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