Morrison v. Ellis

Filing 6

ORDER dismissing Complaint; denying 5 Motion to Appoint Counsel ; granting 2 Motion for Leave to Proceed in forma pauperis. Ordered by U.S. District Judge HUGH LAWSON on 1/6/2015 (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
RICHARD MORRISON,
Plaintiff,
VS.
PAMELA J. ELLIS,
Defendant.
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CIVIL No: 7:14-CV-0205-HL-TQL

ORDER
Plaintiff Richard Morrison, an inmate currently confined at Autry State Prison in Pelham,
Georgia, filed this pro se civil rights action under 42 U.S.C. § 1983. The Court has now
conducted a preliminary review of Plaintiff’s Complaint, as required by 28 U.S.C. § 1915A(a), and
finds that Plaintiff’s allegations fail to state a claim upon which relief may be granted. The
Complaint is accordingly DISMISSED. See 28 U.S.C. § 1915A(b)(1). Plaintiff’s Motion to
Proceed in forma pauperis (Doc. 2) is GRANTED only for the purpose of this dismissal;
Plaintiff’s Motion for the Appointment of Counsel (Doc. 5) is DENIED.
I.

Motion to Proceed in forma pauperis
Plaintiff has requested leave to proceed in this action without prepayment of the filing fee.

See 28 U.S.C. § 1915. After review of Plaintiff’s application and trust account statement,
Plaintiff’s Motion will be GRANTED but only for the purposes of dismissal.
II.

Motion for Appointment of Counsel
Plaintiff has also requested that counsel be appointed to assist him in prosecuting this case.

Under 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 thus not an “exceptional
circumstances” justifying appointment of counsel. The facts stated in Plaintiff’s Complaint are
not complicated; and the law governing Plaintiff’s claims is neither novel nor complex.
Plaintiff’s Motion (Doc. 5) is accordingly DENIED.
III.

Preliminary Review of Plaintiff’s Complaint
Because Plaintiff is a prisoner “seeking redress from a governmental entity or [an] officer

or employee of a governmental entity,” the district court is required to conduct a preliminary
screening of his claims. See 28 U.S.C. § 1915A(a). For those reasons stated herein, the Court
finds that Plaintiff’s Complaint fails to state a claim upon which relief may be granted.
A. Standard of Review
When conducting a preliminary 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 will
be “liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
A pro se pleading is, nonetheless, subject to dismissal prior to service if the court finds that
the complaint, when construed liberally and viewed in the light most favorable to the plaintiff, fails

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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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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
recitals of the elements of cause of action, supported by mere conclusory statements do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
B. Plaintiff’s Complaint
Plaintiff’s Complaint alleges that the court reporter in his 2011 state criminal case,
Defendant Pamela J. Ellis, violated his constitutional rights through an “excessive and inordinate
delay in the production and furnishing of [Plaintiff’s] trial transcripts” which deprived Plaintiff “of
any and all chances or opportunity for a fair and just and equal appellate process and/or motion for
a new trial.” Plaintiff was apparently convicted on July 28, 2011, and now, more than three years
later, attempts to bring a § 1983 claim against Ellis for “negligence, deprivation of due process and
equal protection, conflict of interest, and abuse of discretionary powers.” Compl. at 5.
Plaintiff’s cursory and conclusory allegations are, however, not sufficient to state any type
of § 1983 claim against Defendant Ellis. See Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182,
1188 (11th Cir. 2002) (“unwarranted deductions of facts or legal conclusions masquerading as
facts will not prevent dismissal”). The Complaint does not allege that Plaintiff made a timely
request for a copy of his transcript before any motion or appeal was denied or that such a request
was denied by Ellis. Plaintiff thus fails to allege any facts suggesting that Ellis’ failure to provide
him with a trial transcript was intentional or done with deliberate indifference to his constitutional

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rights. The Complaint further fails to plead facts showing causation and actual injury. The
Complaint does not state whether Plaintiff ever filed a post-conviction motion or notice of appeal,
and if so, how the dismissal or denial of that motion or appeal can be attributed Defendant Ellis’
conduct. Nor is there any information about Plaintiff’s filing to show that it was non-frivolous.
See Bryant v. Ruvin, 477 F. App'x 605, 607 (11th Cir. 2012) (affirming dismissal of claim where
prisoner failed to provide sufficient information for the court to determine if the underlying claim
was frivolous).   
To the extent that Plaintiff is alleging that Ms. Ellis’s failure somehow prevented him from
filing a notice of appeal in his criminal case, his claim is now also time barred. In the State of
Georgia, the statute of limitations for bringing a § 1983 claim is two-years. See Owens v. Okure,
488 U.S. 235, 236, 109 S. Ct. 573, 574, 102 L.Ed.2d 594 (1989), O.C.G.A. § 9-3-33. This
limitations period begins to run when “the plaintiff knows or has reason to know (1) that he was
injured, and (2) who inflicted the injury.” Johnson v. Greaves, 366 F. App’x 976, 978 (11th Cir.
2010) (citing Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir. 1996). Here, Plaintiff alleges that he
was convicted on July of 28, 2011. In Georgia, a notice of appeal must be filed within 30 days
after the entry of the decision or judgment at issue. See O.C.G.A. § 5-6-38(a). Plaintiff was thus
aware – or should have been aware – that he was unable to file a notice of appeal thirty days after
his conviction.

See Salas v. Pierce, 297 F. App’x 874, 878 (11th Cir. 2008).

Plaintiff’s

Complaint, however, was not mailed to this Court until December, 23 2014,1 more than three
years after his conviction. Any claim that Defendant impeded Plaintiff’s ability to file a notice of
appeal in 2011 is thus time-barred. Nothing in the Complaint suggests that the statute of
limitations could be equitably tolled. See Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003).

1 A prisoner’s complaint is generally deemed filed on the date he signs the document and delivers it to prison officials
for mailing. See Garvey v. Vaughn, 993 F.2d 776, 783 (11th Cir. 1993).

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IV.

Conclusion
Plaintiff has therefore failed to state a claim upon which relief may be granted; and his

Complaint is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1). Plaintiff’s Motion to Proceed
in forma pauperis (Doc. 2) is GRANTED only for the purpose of this dismissal; and his Motion
for the Appointment of Counsel (Doc. 5) is DENIED.
SO ORDERED this 6th day of January, 2015.
s/ Hugh Lawson
Hugh Lawson, Judge
UNITED STATES DISTRICT COURT
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