WHITE v. STATEN

Filing 51

ORDER denying 43 Motion to Compel Clerk to Produce Exhibts; construing 44 Notice of Appeal as a motion to reopen the time for appeal and granting that motion; finding as moot 46 Motion for Subpoena; granting 48 Motion to Compel; granting 49 Motion to Proceed In Formm Pauperis. Ordered by US DISTRICT JUDGE HUGH LAWSON on 7/14/2015. (aks)

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

RODERICK MAURICE WHITE,
Plaintiff
VS.
MR. STATEN, et al,
Defendants
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Civil NO. 7:14-CV-117-HL-TQL

ORDER
Pro se Plaintiff Roderick Maurice White, an inmate currently confined at Georgia
State Prison in Reidsville, Georgia, filed the instant action under 42 U.S.C. § 1983. (EFC
No. 1). On April 1, 2015, this Court issued an Order (ECF No. 39) accepting, without
objection from Plaintiff, the Magistrate Judge’s Report and Recommendation (ECF No.
37) that Defendants’ Motion to Dismiss be granted. Judgment was entered the same day
(EFC No. 40). Plaintiff has now filed a Notice of Appeal (ECF No. 44); Motion to
Proceed in forma pauperis on appeal (ECF No. 49); Motion for the appointment of counsel
(EFC No. 42-3); Motion to Compel the Clerk to Produce Exhibits (ECF No. 43); Motion
for Service of Subpoena (ECF No. 46); and Motion to Compel the Clerk of Court to
provide him with copies of the Order and Judgment entered on April 1, 2015 (ECF No. 48).

I.

Notice of Appeal

Rule 4 of the Federal Rules of Appellate Procedure sets the time for filing a notice
of appeal. Generally, “the notice of appeal . . . must be filed with the district clerk within
thirty days after entry of the judgment or order appealed therefrom.” Fed. R. App. P.
4(a)(1)(A). The district court, however, is vested with discretion to reopen the time to
appeal if (1) the court finds that the moving party did not receive notice of the judgment or
order sought to be appealed within 21 days of entry; (2) the motion is filed within 180 days
after the judgment or order is entered or 14 days after the moving party receives notice
under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier, and (3) the
court finds that no party would be prejudiced by reopening the time for filing an appeal.
Fed. R. App. P. 4(a)(6).
In this case, Plaintiff filed his “Notice of Appeal” on June 6, 2015 – sixty-six (66)
days after the entry of judgment. In his Notice, however, Plaintiff does not directly
challenge the underlying grounds for dismissal, i.e., lack of exhaustion. Plaintiff instead
complains that he did not receive a copy of the Order and Judgment entered in this case and
only learned of the dismissal after receiving a copy of the docket sheet dated June 3, 2015,
more than two months after the dismissal. 1 See Notice of Appeal 1-2, ECF No. 44.

1 In his Notice of Appeal, Plaintiff also objects to the filing dates shown on the Docket
Sheet. The Docket Sheet merely reflects the date that Plaintiff’s submission was received
and docketed by the Clerk. Under the “mailbox rule,” however, a prisoner pleading is
deemed filed on the date he signs the document and presumably delivers it to prison
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Plaintiff argues that he was thereby denied the opportunity to file a motion for
reconsideration or timely appeal. Id.

Therefore, having now considered Plaintiff’s

“Notice of Appeal,” the Court construes his pleading, not only as a notice of appeal, but
also as a motion to reopen the time for filing an appeal under Rule 4(a)(6).
Here, judgment was entered on April 1, 2015. The Docket shows, however, that
the day after judgment was entered, April 2, 2015, the Court received notice of a change in
Plaintiff’s address (ECF No. 41), which was signed by Plaintiff on March 24, 2015;
Plaintiff had thus been transferred from Valdosta State Prison to Augusta State Medical
Prison sometime before this date.2 The change of address was noted by the Clerk at that
time, but there is no entry showing that the dismissal Order and Judgment entered on April
1, 2015, were re-mailed to Plaintiff’s new address. Two months later, on June 3, 2015, the
Court received a second notice of a change of address (ECF No. 42). This notice was
apparently mailed by Plaintiff on or about May 28, 2015, and states that Plaintiff had been
transferred to Georgia State Prison in Reidsville, Georgia on May 20, 2015. The second
notice suggests that Plaintiff had not yet been made aware of the dismissal of his case

officials for mailing. See Garvey v. Vaughn, 993 F.2d 776, 783 (11th Cir. 1993). Rule 4
likewise provides that an inmate’s notice of appeal will be deemed timely “if it is deposited
in the institutions internal mail system on or before the last day for filing.” Fed. R. App. P.
4(c)(1).
2. Plaintiff could have been transferred from Valdosta prior to entry of the Magistrate
Judge’s Order and Recommendation (O&R) on March 12, 2015. Plaintiff does not
indicate whether he received a copy of the O&R, but he did not file any objection during
the time provided.
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because he moved to amend his complaint and for the appointment of counsel. See id.
The second change of address was also noted in the Docket, but there is again no docket
entry showing that copies of the Order and Judgment were provided for Plaintiff. Plaintiff
subsequently received a copy of a Docket Sheet dated June 3, 2015 and states that he had
no knowledge of the dismissal before that time. Plaintiff’s “Notice of Appeal” is dated
three days later, June 6, 2015.
In light of these facts, there is good cause for reopening the time for appeal. See
Fed. R. App. P. 4(a)(6). The Court finds that Plaintiff did not receive notice of the Order
or Judgment within twenty-one days of entry, and the construed motion to reopen the time
for appeal was filed within 180 days after the judgment was entered and within fourteen
days of Plaintiff’s learning of the judgment (Plaintiff asserts that he still has not received a
copy of the Order and Judgment). The Court further finds that no party should be
prejudiced by the reopening of the time to file an appeal in this case. In this context, the
term “prejudice” is defined as “some adverse consequence other than the cost of having to
oppose the appeal and encounter the risk of reversal, consequences that are present in every
appeal.” See Fed. R. App. P. 4(a)(6) advisory committee's note to 1991 amendment.
“Prejudice might arise, for example, if the appellee had taken some action in reliance on the
expiration of the normal time period for filing a notice of appeal.” Id. It is highly unlikely
that Defendants have taken any action in reliance on the expiration of the normal time for
appeal in this case – especially given the relatively short period of delay. Plaintiff’s
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construed motion to re-open the time for appeal is thus GRANTED and his Notice of
Appeal is deemed timely.
II.

Motion to Proceed In Forma Pauperis

In light of the facts discussed above, the Court cannot find that Plaintiff’s appeal is
entirely frivolous.

His Motion to Proceed in forma pauperis on Appeal is thus

GRANTED. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3).
III.

Motions to Compel

Also, in light of the findings above, Plaintiff’s Motion to Compel the Clerk of Court
to provide him with copies of the Order and Judgment entered on April 1, 2015 (ECF No.
48) is GRANTED. The Clerk is accordingly ORDERED to mail Plaintiff copies of the
Order and Recommendation entered March 12, 2015 (ECF No. 37), this Court’s Order on
the Report and Recommendation (ECF No. 39), and the Judgment entered on April 1, 2015
(ECF No. 40).

The Court’s findings above, however, render Plaintiff’s Motion for

Subpoena (ECF No. 46) MOOT; and because there is no evidence other than Plaintiff’s
mere suspicion that the Clerk’s Office conspired with Defendants to deny him copies of the
dismissal order, his Motion to Compel Clerk to Produce Exhibits (ECF No. 43) is
DENIED.
IV.

Motion for Appointment of Counsel

Plaintiff has moved for the appointment of counsel in this case multiple times (See
e.g., ECF No. 3, 23) and again moved for the appointment of counsel in this case
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post-judgment (EFC No. 42-3). Because the appeal has already been docketed in this
case, the Court will construe the motion as a motion for counsel on appeal.
As Plaintiff is surely aware, there is “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).
The Court has now considered Plaintiff’s most-recent request for counsel and finds
that, at this time, the essential facts and legal doctrines relevant to his appeal are
ascertainable by Plaintiff without the assistance of court-appointed counsel and that
Plaintiff has not otherwise shown the existence of exceptional circumstances warranting
the appointment of counsel. Plaintiff’s Motion is accordingly DENIED.
V.

Conclusion

For those reasons stated herein, Plaintiff’s Notice of Appeal (EFC No. 44) is also
construed as a motion to reopen the time for appeal: that motion is GRANTED and his
Notice of Appeal is deemed timely. Plaintiff’s Motion to Proceed in forma pauperis on
Appeal (ECF No. 49) and Motion to Compel (ECF No. 48) are also GRANTED.
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Plaintiff’s Motion for Subpoena (ECF No. 46) is, however, deemed MOOT, and his
Motion to Compel Clerk to Produce Exhibits (ECF No. 43) is DENIED.
SO ORDERED, this 14th day of July, 2015.
s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE

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