CORDOVA v. BRYSON et al

Filing 9

ORDER DENYING 3 Motion to Appoint Counsel; DENYING 7 Motion to Appoint Counsel; GRANTING 2 Motion for Leave to Proceed in forma pauperis; and DISMISSING (1) Complaint. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/7/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DAVID CORDOVA,
Plaintiff,
VS.
HOMER BRYSON, et al,
Defendants.
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CIVIL No: 5:16-CV-0544-MTT-CHW

ORDER OF DISMISSAL
This case is currently before the Court for preliminary screening as required by the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(a). Plaintiff David Cordova,
an inmate confined at Hancock State Prison, in Sparta, Georgia, filed the above-captioned
case seeking money damages under 42 U.S.C. § 1983. Along with his Complaint,
Plaintiff filed a motion for leave to proceed without prepayment of the filing fee (Doc. 2)
and a motion for the appointment of counsel (Doc. 3). He has also since amended his
complaint to add claims against new parties (Doc 7). After due consideration, Plaintiff’s
motion to proceed in forma pauperis is GRANTED. The Court finds, however, that
Plaintiff’s complaint fails to state a non-frivolous claim for relief. The complaint is thus
DISMISSED pursuant to § 1915A(b). Plaintiff’s motion for counsel is DENIED.
I.

Motion to Proceed In Forma Pauperis

Any court of the United States may authorize the commencement a civil action,
without prepayment of the required filing (in forma pauperis), if the plaintiff shows that he

is indigent and financially unable to pay the court’s filing fee. See 28 U.S.C. § 1915(a).
A prisoner wishing to proceed under § 1915 must provide the district court with both (1) an
affidavit in support of his claim of indigence and (2) a certified copy of his prison “trust
fund account statement (or institutional equivalent) for the 6-month period immediately
preceding the filing of the complaint.” § 1915(b).
Pursuant to this provision, Plaintiff has moved for leave to proceed without
prepayment of the $350.00 filing fee, and his submission show that he is currently unable
to pre-pay the entire filing fee. Plaintiff’s motion to proceed in forma pauperis (ECF No.
2) is thus GRANTED. Plaintiff is, however, still obligated to eventually pay the full
balance of the filing fee, in installments, as set forth in § 1915(b) and explained below.
The district court’s filing fee is not refundable, regardless of the outcome of the case, and
must therefore be paid in full even if the plaintiff’s complaint is dismissed prior to service.
For this reason, it is requested that the CLERK forward a copy of this ORDER to
the business manager of the facility in which Plaintiff is incarcerated so that withdrawals
from his account may commence as payment towards the filing fee.
A. Directions to Plaintiff’s Custodian
Because Plaintiff has now been granted leave to proceed in forma paupers in the
above-captioned case, it is hereby ORDERED the warden of the institution wherein
Plaintiff is incarcerated, or the Sheriff of any county wherein he is held in custody, and any
successor custodians, each month cause to be remitted to the CLERK of this Court twenty
percent (20%) of the preceding month’s income credited to Plaintiff’s trust account at said
institution until the $350.00 filing fee has been paid in full. The funds shall be collected
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and withheld by the prison account custodian who shall, on a monthly basis, forward the
amount collected as payment towards the filing fee, provided the amount in the prisoner’s
account exceeds $10.00. The custodian’s collection of payments shall continue until the
entire fee has been collected, notwithstanding the dismissal of Plaintiff’s lawsuit or the
granting of judgment against him prior to the collection of the full filing fee.
B. Plaintiff’s Obligations Upon Release
In the event Plaintiff is hereafter released from the custody of the State of Georgia or
any county thereof, he remains obligated to continue making monthly payments to the
CLERK toward the balance due until said amount has been paid in full. Collection from
Plaintiff of any balance due on the filing fee by any means permitted by law is hereby
authorized in the event Plaintiff is released from custody and fails to remit payments.
Plaintiff’s complaint may be dismissed if he is able to make payments but fails to do so.
II.

Motion for Appointment of Counsel

Plaintiff has also requested counsel. The district court may, under 28 U.S.C. §
1915, appoint counsel in a civil case when the plaintiff is unable to afford an attorney.
Civil litigants (including prisoners pursuing a § 1983 action), however, do not have a right
to counsel. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). The appointment of
counsel in a civil case is “a privilege that is justified only by exceptional circumstances,
such as where the facts and legal issues are so novel or complex as to require the assistance
of a trained practitioner.” Id. “The key is whether the pro se litigant needs help in
presenting the essential merits of his or her position to the court. Where the facts and issues

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are simple, he or she usually will not need such help.” Kilgo v. Ricks, 983 F.2d 189, 193
(11th Cir. 1993).
In this case, Plaintiff has filed a § 1983 complaint on the standard complaint form
designed for pro se litigants. The PLRA requires that the Court now review Plaintiff’s
complaint form to determine whether he can possibly state a viable claim against the
named defendants.

This process is routine in pro se prisoner actions and not an

“exceptional circumstance” justifying the appointment of counsel. The facts and legal
issues in the complaint are fairly straightforward; and the court has not imposed any
procedural requirements which would limit Plaintiff’s ability to present his case.
Plaintiff’s motion for counsel is therefore DENIED.
III.

Authority & Standard for Preliminary Screening

The Court is now obligated to conduct a preliminary review of Plaintiff’s
Complaint. See 28 U.S.C. § 1915A(a) (requiring the screening of prisoner cases) & 28
U.S.C. § 1915(e) (regarding in forma pauperis proceedings). When performing this
review, 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 thus pro se claims are
“liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998). The district court, however, cannot allow a pro se plaintiff to litigate frivolous
claims. The court is instead obligated to dismiss a pro se complaint, or any part thereof,
prior to service, if it is apparent on the face of the complaint that the plaintiff’s claims are
without arguable basis in law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989).
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IV.

Plaintiff’s Complaint

In this case, Plaintiff complains that his confinement in this country is unlawful.1
Plaintiff states that, on August 26, 2016, prison officials transported him to Jackson State
Prison so that he could meet with Immigration and Customs Enforcement (“I.C.E.”). At
that meeting, Plaintiff signed a consent to removal and deportation. Plaintiff believes that
his agreement with I.C.E. renders his prior agreement with the State to accept a guilty plea,
his conviction, and his sentence “NULL and VOID.”

The Georgia Department of

Corrections and officials at Hancock State Prison have, nonetheless, “been holding
[Plaintiff] falsely under commercial confinement without compensation” for the purpose
of enriching themselves. See Compl. 1-3. Plaintiff thus seeks to recover “compensation”
in the amount of $20,000 for each week he is held in state custody after August 25, 2016.
Based on these allegations, Plaintiff’s Complaint is liberally construed as bringing
claims against Defendants for false imprisonment. A prisoner, however, cannot challenge
the correctness of his confinement under § 1983. “[H]abeas corpus is the exclusive
remedy for a state prisoner who challenges the fact or duration of his confinement.” See
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). A claim for false imprisonment may be
brought under § 1983 only after his conviction or sentence has been declared unlawful by a
court or executive order, invalidated by a state tribunal, or called into question by a writ of
habeas corpus. Id.

1 Although Plaintiff does not provide any details about the nature of his conviction and the
duration of his sentence, the Georgia Department of Corrections website shows that he was
sentenced to “life without parole” after being convicted for murder in Long County, Georgia. See
http://www.dcor.state.ga.us/GDC/OffenderQuery/jsp/OffQryFormjsp (last visited March 2, 2017).

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In this case, Plaintiff’s factual allegations in no way suggest that his sentence has
been declared unlawful by a state court, executive order, state tribunal, or writ of habeas
corpus. Nor is there any legal basis for Plaintiff’s conclusion that his willingness to waive
removal proceedings and consent to deportation renders his continued confinement, under
a valid state sentence, unlawful. See generally 8 U.S.C. § 1231(a)(4)(B). See e.g., Abreu
v. Barnes, No. CIV. A. 08-3013 WJM, 2009 WL 260796, at *12 (D.N.J. Feb. 4, 2009)
(“deferral of [a prisoner’s deportation] until the completion of his term of incarceration
does not violate the Constitution or laws of the United States”).
The Court therefore finds that Plaintiff’s claims have no arguable merit, and his
complaint is DISMISSED pursuant to 28 U.S.C. § 1915A(b).
SO ORDERED this 7th day of March, 2017
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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