WYNN v. DAVIS et al
ORDER DENYING 28 Motion to Appoint Counsel and DENYING 29 Motion for Leave to Appeal in forma pauperis. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 1/23/2014. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
BOBBY LEON WYNN,
SHERIFF DAVID DAVIS, et al.,
CASE NO. 5:13‐CV‐19-MTT
Plaintiff Bobby Leon Wynn, an inmate currently confined at the Bibb County LEC
in Macon, Georgia, filed a pro se civil rights complaint under 42 U.S.C. § 1983. This
case was ordered dismissed by this Court on November 15, 2013. (Doc. 23.) Judgment
was entered against Plaintiff on November 19, 2013. (Doc. 24.)
Plaintiff has now filed a Motion for Appointment of Counsel (Doc. 28) and a
Motion to Proceed in forma pauperis on Appeal (Doc. 29) from this Court’s Order
dismissing his Complaint. Regarding Plaintiff’s motion for appointment of counsel,
under 28 U.S.C. § 1915(e)(1), the district court “may request an attorney to represent
any person unable to afford counsel.” However, there is “no absolute constitutional right
to the appointment of counsel” in a section 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). The Court finds that Plaintiff set forth the
essential factual allegations underlying his claims and the Court determined that
Plaintiff’s allegations failed to state a valid § 1983 claim. Furthermore, Plaintiff’s case is
now closed in this Court. For those reasons, Plaintiff’s motion for appointment of
counsel is DENIED.
As to his motion to proceed in forma pauperis on appeal, in the Court’s best
judgment, an appeal from this Order cannot be taken in good faith. Plaintiff’s Motion to
Proceed in forma pauperis on appeal is accordingly DENIED. See 28 U.S.C.
§ 1915(a)(3) (“An appeal may not be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.”); Fed. R. App. P. 24(a)(3) (“A party who was
permitted to proceed in forma pauperis in the district-court action . . . may proceed on
appeal in forma pauperis . . . unless . . . the district court . . . certifies that the appeal is
not taken in good faith”).
If Plaintiff wishes to proceed with his appeal, he must pay the entire $505.00
appellate filing fee. Because Plaintiff has stated that he cannot pay the $505.00
immediately, he must pay using the partial payment plan described under 28 U.S.C.
§ 1915(b). Pursuant to § 1915(b), the prison account custodian where Plaintiff is
incarcerated shall cause to be remitted to the Clerk of this Court monthly payments of
20% of the preceding month’s income credited to Plaintiff’s account until the $505.00
appellate filing fee has been paid in full. Twenty percent of any deposits into the
prisoner’s account shall be withheld by the prison account custodian who, on a monthly
basis, shall forward the amount withheld from the prisoner’s account to the Clerk of this
Court each time the amount in the account exceeds $10.00 until the total filing fee of
$505.00 has been paid. Checks should be made payable to “Clerk, U.S. District Court.”
The Clerk of Court is DIRECTED to mail a copy of this Order to the custodian of
the prison in which Plaintiff is presently incarcerated. Any further requests to proceed in
forma pauperis on appeal should be directed, on motion, to the United States Court of
Appeals for the Eleventh Circuit, in accordance with Rule 24 of the Federal Rules of
SO ORDERED this 23rd day of January, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?