LITTLE V. MARKELY, et al

Filing 9

ORDER granting 7 Motion for Leave to Proceed in forma pauperis; denying 8 Motion to Appoint Counsel; and Dismissing Plaintiff's Complaint. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 8/20/15 (lap)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION

MELVIN LITTLE, JR,
Plaintiff,
VS.
Sheriff ROBERT MARKELY, et al,
Defendants
_________________________________

:
:
:
:
:
:
:
:
:

CIVIL No: 3:15-CV-0067-CAR

ORDER
Plaintiff Melvin Little Jr., an inmate currently confined at Georgia State Prison, in
Reidsville, Georgia, has filed a pro se complaint in this Court to recover damages for
alleged civil rights violations occurring during his arrest and subsequent probation
revocation in 2011. Plaintiff seeks leave to proceed without prepayment of the required
$350.00 filing fee and also requests the appointment of counsel. For those reasons stated
herein, Plaintiff’s Motion to Proceed in forma pauperis (ECF No. 7) is GRANTED. His
Motion for the Appointment of Counsel (ECF No. 8) is, however, DENIED. The Court
has also conducted a review of Plaintiff’s Amended Complaint (EFC No. 6), as required by
28 U.S.C. § 1915A(a), and finds that his complaint is frivolous, seeks to recover damages
from immune defendants, or otherwise fails to state a claim upon which relief may be
granted. Plaintiff’s Amended Complaint is accordingly DISMISSED under § 1915A(b).

I.

Motion for Leave to Proceed in forma pauperis
The Court has reviewed Plaintiff’s Motion to Proceed in forma pauperis and, based

on his submissions (ECF No. 5, 7), finds that Plaintiff is presently unable to pre-pay any
portion of the filing fee. Plaintiff’s Motion is thus GRANTED for the purpose of
dismissal.
II.

Motion for Appointment of Counsel
Plaintiff has also filed a motion requesting that he be appointed counsel. Pursuant

to 28 U.S.C. § 1915(e)(1), the district court “may request an attorney to represent any
person unable to afford counsel.” There is, however, “no absolute constitutional right to
the appointment of counsel” in a § 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028
(11th Cir. 1987).

Appointment of counsel is a privilege that is justified only by

exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In deciding
whether legal counsel should be provided, the Court considers, among other factors, the
merits of Plaintiff’s claim and the complexity of the issues presented. Holt v. Ford, 682
F.2d 850, 853 (11th Cir. 1989).
In this case, Plaintiff has filed a § 1983 pro se complaint on a standard form. The
Court is now required to review the Complaint to determine whether Plaintiff’s allegations
state a colorable legal claim. This process is routine in pro se prisoner actions and is not
an “exceptional circumstance” justifying the appointment of counsel. The facts stated in
Plaintiff’s Complaint are not complicated, and the law governing his claims is neither
novel nor complex.

2

The Court thus finds that the essential facts and legal doctrines in this case are
ascertainable by Plaintiff without the assistance of an attorney and that the existence of
exceptional circumstances otherwise warranting the appointment of counsel has not been
shown by Plaintiff. Plaintiff’s request for court-appointed counsel is accordingly (ECF
No. 8) DENIED.
III.

Preliminary Screening of Plaintiff’s Complaint
A. Standard of Review

Because Plaintiff is a prisoner “seeking redress from a governmental entity or [an]
officer or employee of a governmental entity,” this Court is required to conduct a
preliminary screening of his Complaint. See 28 U.S.C. § 1915A(a). In so doing, the
district court must accept all factual allegations in the complaint as true. Brown v.
Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Pro se pleadings are also “held to a less
stringent standard than pleadings drafted by attorneys” and must be “liberally construed”
by the court. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
A pro se pleading is, however, subject to dismissal prior to service if the court finds
that the complaint, when construed liberally and viewed the plaintiff’s favor, fails to state a
claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1). To state a claim,
a complaint must include “enough factual matter (taken as true)” to “give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests[.]” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555-56(2007). The plaintiff must also allege sufficient facts to
“raise the right to relief above the speculative level” and create “a reasonable expectation”
that discovery will reveal evidence necessary to prove a claim. See id. “Threadbare
3

recitals of the elements of cause of action, supported by mere conclusory statements do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).
B. Plaintiff’s Claims
The present action arises of Plaintiff’s 2011 arrest and probation revocation.
Plaintiff has sued the Sheriff of Morgan County, three Deputy Sheriffs, three state court
judges, the prosecutor in his case, his defense counsel, and two probation officers. He
claims that the search of his home and arrest were unlawful and that his rights were
violated during the resulting revocation of his probation. Among other things, Plaintiff
asks the Court to “end the careers of Defendants,” order his release from prison, and award
him money damages.
Upon review, the Court finds that Plaintiff’s claims are frivolous and fail to state a
claim for relief. First, Plaintiff’s claims arising from events that occurred in 2011 have
been filed outside the two-year statute of limitations for § 1983 claims and are thereby
time-barred. See Owens v. Okure, 488 U.S. 235, 236 (1989), (citing Wilson v. Garcia, 471
U.S. 261 (1985)); O.C.G.A. § 9-3-33 (1982). The fact that Plaintiff is still incarcerated as
a result of those events does not constitute a continuing violation. See Ward v. Caulk, 650
F.2d 1144, 1147 (9th Cir.1981) (“A continuing violation is occasioned by continual
unlawful acts, not by continual ill effects from an original violation.”). See also, Parrish v.
City of Opp, Ala., 898 F. Supp. 839, 843 (M.D. Ala. 1995) (false arrest is a discrete wrong
not a continuing violation). It thus appears beyond a doubt from the Amended Complaint
itself that Plaintiff can prove no set of facts to avoid a statute of limitations bar. This is
reason enough to dismiss his claims. See Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir.
4

2003) (quoting Leal v. Ga. Dep't of Corr., 254 F.3d 1276, 1280 (11th Cir. 2001)).
Most of Plaintiff’s claims, however, are also subject to dismissal because he seeks
to recover damages from immune parties or individuals otherwise not subject to liability
under § 1983. A state judge is absolutely immune from monetary liability for judicial
acts, “even when such acts are in excess of [his] jurisdiction and are alleged to have been
done maliciously or corruptly.”

Stump v. Sparkman, 435 U.S. 349, 356 (1978).

Prosecutors are similarly immune from liability under § 1983 when engaged in
prosecutorial functions. Imbler v. Pachtman, 424 U.S. 409, 428 (1976). The decision to
charge or drop charges against an arrestee is of course a prosecutorial function. See
Anderson v. Simon, 217 F.3d 472, 475-76 (7th Cir. 2000).1 Defense attorneys, though not
entitled to immunity, are not considered “state actors” and thus are not subject to liability
under § 1983. See Polk County, et al. v. Dodson, 454 U.S. 312, 325 (1981).
Even if Plaintiff could sue the named defendants, any claim for damages based upon
Defendants’ alleged unlawful conduct – which necessarily resulted in Plaintiff’s criminal
conviction – are further not cognizable under § 1983 because his conviction has not been
invalidated - i.e., reversed, expunged, set aside, or called into question by the issuance of a
writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Inasmuch,
an incarcerated prisoner is prohibited from bring a § 1983 claim for damages based on
allegations of an invalid criminal conviction unless or until that conviction has been
invalidated through appeal or habeas corpus. Id. Plaintiff’s request for an injunction
Plaintiff generally complains the assistant district attorney in his criminal case chose to
prosecute him even though she was aware of his mental health issues, medication, and
intoxication at the time of the crime.

1

5

resulting in his release from prison fails for the same reason. Habeas corpus “is the
exclusive remedy for a state prisoner who challenges the fact or duration of his
confinement and seeks immediate or speedier release.” Id. at 481. And, Plaintiff’s
demand that Court “end the careers of Defendants” is simply frivolous; this claim has no
basis in law. Newman v. Ala., 559 F.2d 283, 288 (5th Cir.), cert. denied, 438 U.S. 915
(1978) (district court does not have “authority to address state officials out of office or to
fire state employees.”).
IV.

Conclusion
For those reasons discussed above, Plaintiff’s Motion to Proceed in forma pauperis

is GRANTED, and his Motion for the Appointment of Counsel is DENIED. The Court
additionally finds that Plaintiff’s Amended Complaint is frivolous, seeks to recover
damages from immune defendants, or otherwise fails to state a claim upon which relief
may be granted. It therefore DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1), (2).
SO ORDERED this 20th day of August, 2015.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE

6