Vega v. State of Florida et al
OPINION AND ORDER denying re: 56 MOTION for Leave to Appeal in forma pauperis MOTION to Appoint Counsel. Signed by Judge Sheri Polster Chappell on 12/5/2017. (SLU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No: 2:16-cv-84-FtM-38CM
STATE OF FLORIDA, FRED R.
KAHLE, CITY OF FORT MYERS,
JOHN TOBECK, ALLIGATOR
TOWING COMPANY and UNION
OPINION AND ORDER1
This matter comes before the Court on Plaintiff Walter Vega's Motion for Leave to
Appeal In Forma Pauperis and for Appointment of Counsel (Doc. #56) filed on November
On April 21, 2017, the Court dismissed Plaintiff’s case for failure to state a
claim because his excessive force claims were filed eight years after the expiration of the
statute of limitations.
Pursuant to Rule 24(a) of the Federal Rules of Appellate Procedure, Petitioner’s
appeal is not taken in good faith as his claims are legally barred by the statute of
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Therefore, he will be required to pay the $505.00 appellate filing and
docketing fees. See McIntosh v. United State Parole Comm., 115 F.3d 809, 812 (10th
Cir. 1997) (Petitioner must demonstrate “the existence of a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal.”). Plaintiff has
not identified any meritorious issues to raise on appeal. Because the Court has certified
that this appeal is not taken in good faith, any request to proceed in forma pauperis should
be sent directly to the Eleventh Circuit Court of Appeals. See Fed. R. App. P. 24(a)(5).
Plaintiff also moves the Court to appoint counsel on appeal. The United States
Supreme Court has stated that “[t]he pre-eminent generalization that emerges from this
Court's precedents on an indigent's right to appointed counsel is that such a right has
been recognized to exist only where the litigant may lose his physical liberty if he loses
the litigation.” Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 25 (1981). An action filed
under 42 U.S.C. § 1983 is civil in nature and does not affect a plaintiff's physical liberty.
Thus, any plaintiff in a civil action, regardless of his status, has no constitutional right to
counsel. Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999). The Court has found that
any appeals in this case are not taken in good faith because Plaintiff’s case was dismissed
for failure to state a claim. Consequently, to the extent that Plaintiff seeks appointment
of counsel on appeal, the Motion is denied and he should seek such relief from the
Eleventh Circuit Court of Appeals.
Accordingly, it is now
Plaintiff Walter Vega's Motion for Leave to Appeal In Forma Pauperis and for
Appointment of Counsel (Doc. #56) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 5th day of December, 2017.
All Counsel of Record
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