NOLLEY v. NELSON et al

Filing 78

ORDER DENYING 66 Motion to Appoint Counsel ; DENYING 72 Motion for Extension of Time; DENYING 75 Motion for Leave to Appeal in forma pauperis; and GRANTING 71 Motion for Copies. The CLERK is DIRECTED to provide Plaintiff with copies of the requested documents and a copy of the Docket free of charge. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 8/16/2016. (tlh)

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

DARNELL NOLLEY,

:
:
:
:
:
:
:
:

Plaintiff,
VS.
CYNTHIA NELSON, et al,

CIVIL NO. 5:15-cv-0075-CAR-MSH

Defendants.
________________________________

ORDER ON MOTIONS
Currently pending before the Court are Plaintiff Darnell Nolley’s Motion for
Appointment of Counsel (Doc. 66), Motion for Extension of Time (Doc. 72), Motion for
Copies of Documents (Doc. 71), and Motion to Proceed in forma pauperis on Appeal (Doc.
75). Each of Plaintiff’s motions are addressed in turn below:
I.

Motion for Appointment of Counsel

Plaintiff has filed a second motion requesting that counsel be appointed to assist him
in prosecuting this case. In his first motion for counsel (Doc. 27), Plaintiff made many of
the same arguments included in his present motion; and upon consideration, the United
States Magistrate Judge found that the appointment of counsel was then not warranted.
See Order & Recommendation (“O&R”), March 10, 2016, ECF No. 50 at 30. Plaintiff
filed an objection to the order (Doc. 53) and has now filed a second motion for the
appointment of counsel (Doc. 66).

The Court has read and fully considered all of Plaintiff’s arguments and, like the
Magistrate Judge, finds that the facts involved in this case are not complicated and that the
law governing Plaintiff’s claims is neither novel nor complex so as to warrant the
appointment of counsel. See Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987).
Plaintiff’s many filings further demonstrate that Plaintiff is able to articulate the essential
facts and that he has a basic understanding of the law. Indeed, despite his claims of
inexperience in the law, Plaintiff is far from a novice when it comes to pro se litigation.
See Nolley v. Deal, 4:13-cv-0313 (N.D. Ga. 2013); Nolley v. Unnamed, 4:15-cv-0161
(N.D. Ga. 2015); Nolley v. Gramiak, 3:15-cv-0114 (M.D. Ga. 2015); Nolley v.
McLaughlin, 5:15-cv-0149 (M.D. Ga. 2015); Nolley v. Bryson, 4:15-cv-0189 (N.D. Ga.
2015); Nolley v. Bryson, 5:15-cv-0324 (2015); Nolley v. Doe, 3:16-cv-006-CDL-CHW
(M.D. Ga. 2016); Nolley v. Gramiak, 3:16-cv-009 (M.D. Ga. 2016). Plaintiff has in fact
shown a workable knowledge of the legal process and is also ably prosecuting three other
civil actions in this court without the assistance of counsel.

See McLaughlin,

5:15-cv-0149; Gramiak, 3:16-cv-009; Gramiak, 3:15-cv-0114. Nothing in his filings
suggests that Plaintiff will be unable to participate in discovery or to adequately make or
respond to any future motions.
Furthermore, the conditions and logistical difficulties of which Plaintiff complains
– such as transfers, solitary confinement, lockdowns, restricted access to legal materials,
and an inability investigate factual matters outside of discovery – do not in and of
themselves qualify as “extraordinary circumstances” justifying the appointment of
2

counsel. See Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). C.f. Amante v. Walker, 268
F. Supp. 2d 154, 158 (E.D.N.Y. 2003). See also Hampton v. Peeples, No. CV 614-104,
2015 WL 4112435, at *2 (S.D. Ga. July 7, 2015) (“prisoners do not receive special
consideration notwithstanding the challenges of litigating a case while incarcerated”);
Throop v. Woodford, No. CIV. 06CV2376, 2007 WL 2317122, at *1 (S.D. Cal. Aug. 9,
2007) (prisoner’s impaired ability to write, combined with his placement in administrative
segregation, did not warrant appointment of counsel). And, after a review of Plaintiff’s
filings, it does not appear that the limitations imposed by Plaintiff’s confinement have
affected his ability to prosecute this case. Plaintiff has submitted timely and appropriate
motions, briefs, responses, and objections and has even sometimes included citations to
relevant statutes and case law.
Plaintiff’s most recent request for the appointment of counsel (Doc. 66) is thus
DENIED without prejudice to his right to renew it at a later stage of the proceedings.
II.

Motion for Extension of Time

Plaintiff also seeks leave to file an out-of-time motion for reconsideration with
respect to the Court’s order denying his requests to supplement his complaint. Plaintiff’s
Motion for an extension of time (Doc. 72, 73) is DENIED. The Court has already
considered and ruled on one motion for reconsideration as to this issue and therein found
that Plaintiff’s motions to supplement were properly denied. See Order, June 24, 2016,
Doc. 65.

Plaintiff’s present motion also fails to identify any valid basis for

reconsideration. Plaintiff simply states that he wishes to file an out-of-time motion
3

because the Court “overlooked” arguments he previously made. See Motion, Doc. 72, at
1. Plaintiff’s resubmission of the same arguments – or even of arguments that should have
been (but were not) raised previously – would be futile. A plaintiff cannot “employ a
motion for reconsideration as a vehicle to present new arguments or evidence that should
have been raised earlier, introduce novel legal theories, or repackage familiar arguments to
test whether the Court will change its mind.” Brogdon v. National Healthcare Corp., 103
F. Supp. 2d 1322, 1338 (N.D. Ga. 2000).
III.

Motion for Copies of Documents

Plaintiff next requests that he be provided copies of documents from the Court free
of charge. In support of his request, Plaintiff states that he is a pauper, without funds to
pay the required fee for copies, and that he has never before obtained copies of these
documents. See Motion, July 14, 2016, Doc. 71. In another motion filed on or about the
same date, Plaintiff additionally alleges that “Departmental Cobra Squad Members”
rummaged through his legal papers on June 22, 2016, and in the process, many of his
court-related documents were either badly damaged or destroyed.
allegations, Plaintiff’s motion will be GRANTED.

In light of these

The CLERK is accordingly

DIRECTED to provide Plaintiff with copies of the requested documents and a copy of the
Docket free of charge.
IV.

Motion to Proceed in forma pauperis on Appeal

Finally, Plaintiff has moved for leave to proceed in forma pauperis on appeal from
“the final judgment entered in this action on June 24, 2016” [Doc. 75]. No final judgment
4

has been entered in this case. The Court did, however, enter an order on June 24, 2016,
granting-in-part Defendants’ Pre‐Answer Motion to Dismiss [Doc. 21], denying Plaintiff’s
Motions to Supplement [Docs. 19, 35, 46, 48]; and denying Plaintiff’s Motion for
Preliminary Injunctive Relief [Doc. 31‐1]. It is thus presumed that Plaintiff’s appeal is
based on one or more of the rulings made in this Order.
The district court may authorize an appeal of a civil action without prepayment of
fees if the plaintiff submits an affidavit that includes a statement of his assets and shows
that he is unable to pay the filing fee. 28 U.S.C. § 1915(a)(1). An appeal, however, may
not be taken in forma pauperis – regardless of the plaintiff’s economic eligibility – if the
trial court finds that it is not taken in good faith. 28 U.S.C. § 1915(a)(3).
In this case, Plaintiff’s Motion does not include an appropriate affidavit or statement
showing that he is currently unable to prepay the filing fee. After a review of Plaintiff’s
Motion, Notice of Appeal (Doc. 68), and the prior orders in this case, the Court finds no
good faith basis for his appeal. The Court therefore certifies, pursuant to § 1915(a)(3),
that Plaintiff’s appeal is not taken in good faith. Plaintiff’s Motion to Proceed in forma
pauperis on Appeal is DENIED.
If Plaintiff wishes to proceed with an 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). The prison account custodian where Plaintiff is incarcerated shall thus cause to
be remitted to the Clerk of this Court monthly payments of 20% of the preceding month’s
5

income credited to Plaintiff’s account until the $505.00 appellate filing fee has been paid in
full. These funds 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.”
CONCLUSION
As stated herein, Plaintiff’s Motion for Appointment of Counsel, Motion for
Extension of Time, and Motion to Proceed in forma pauperis on Appeal are DENIED.
Plaintiff’s motion for copies of documents without payment is, however, GRANTED; and
the CLERK is DIRECTED to provide Plaintiff with copies of the requested documents
and a copy of the Docket free of charge.
SO ORDERED, this 16th day of August, 2016.

S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE

6