Coleman v. Danforth, et al

Filing 221

ORDER denying 213 Motion for New Trial; denying 216 Motion for Leave to Appeal in forma pauperis; denying 217 Motion to Appoint Counsel ; denying 218 Motion for Transcript. Signed by Judge Dudley H. Bowen on 11/22/2019. (pts)

FILED
U.S. DISTRICT COUIL
/,Uir.,ETA [
IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA

2019NOV22

DUBLIN DIVISION

CLERK^
SO

COREY LEWIS COLEMAN,
Plaintiff,

CV 316-095

V.

WILLIAM DANFORTH, Warden,
Telfair State Prison;
SERGEANT KAREN JORDAN-THOMAS;
SERGEANT THOMAS TAYLOR;
LIEUTENANT RICKEY WILCOX;

SAM ZANDERS, Deputy Warden,
Telfair State Prison; and

RODNEY MCCLOUD, Unit Manager,
Telfair State Prison,
Defendants.

ORDER

Before

the

Court

are

four

of

Plaintiff

Corey

Coleman's

motions: a motion for new trial {doc. no. 213), a motion for leave

to appeal in forma pauperis (doc. no. 216), a motion to appoint
counsel on appeal (doc. no. 217), and a motion for trial transcript
(doc. no. 218).

Plaintiff now proceeds pro se following a jury

verdict at a trial which concluded on September 24, 2019.

For the

following reasons. Plaintiff's motions are denied.

I.

Motion for New Trial

Federal Rule of Civil Procedure 59(b) provides that a motion
for new trial must be filed '"no later than 28 days after the entry

of judgment." The Clerk entered judgment in this case on September
26, 2019.

Plaintiff filed his motion on November 1, 2019 — 36

days after judgment was entered.

The Court therefore denies

Plaintiff's motion for a new trial as untimely.

See Martinair

Holland, N.V. v. Benihana, Inc., 780 F.App'x 772, 775-76 (11th

Cir. 2019) (declining to consider Rule 59 motion filed 31 days

after judgment was entered); Fed. Trade Comm'n v. RCA Credit
Servs., LLC, 440 F.App'x 831, 833 (11th Cir. 2011) ('MA] district
court

'must

not

extend

the

time'

to

file

a

Rule

59

motion."

(quoting Fed. R. Civ. P. 6(b)(2))).

II.

Motion for Leave to Appeal In forma pauperls

Plaintiff next moves for leave to appeal in forma pauperis.
Plaintiff did not submit a statement of the nature of his appeal

with his motion.1
§ 1915(a)(1).

See Fed. R. App. P. 24(a)(1)(B)-(C); 28 U.S.C.

The Court also notes that Plaintiff was permitted

to proceed in forma pauperis at the district court level.
Doc. No. 15, at 2.)

(See

Therefore, Federal Rule of Appellate Procedure

24(a)(3) permits Plaintiff to appeal in forma pauperis unless the

^
Despite Plaintiff's filing deficiencies, the Court looks to
Plaintiff s notice of appeal to determine its nature and concludes
nonetheless that Plaintiff's appeal is frivolous for the reasons
explained below.

Court certifies that the appeal is not taken in good faith.

See

also 28 U.S.C. § 1915(a)(3).

An appeal is not taken in good faith if it is frivolous.

See

Coppedge v. United States, 369 U.S. 438, 445 (1962). ''Frivolous,"
in turn, means "without arguable merit either in law or fact."
Bilal V. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (citations

omitted).

Trial courts possess wide discretion in determining

whether to grant a motion for leave to appeal in forma pauperis in
civil

cases,

which

is

a

privilege

that

sparingly, especially in cases for damages.

should

be

extended

Martinez v. Kristi

Kleaners, Inc., 364 F.3d 1305, 1306 (11th Cir. 2004) (per curiam)
(citation omitted); see also Startti v. United States, 415 F.2d

1115, 1116 (5th Cir. 1969) (per curiam) ("There is no absolute

right to be allowed to proceed in forma pauperis in civil matters;
rather it is a privilege extended to those unable to pay filing
fees when the action is not frivolous or malicious.").

Plaintiff's notice of appeal states that he appeals "from the

final judgment entered . . . on September 24, 2019," which was the
date the jury returned a verdict for Defendants on Plaintiff's
Eighth

Amendment

failure-to-protect

claim.

Nonetheless,

Plaintiff's grounds for appeal are directed only at the Court's
grant of summary judgment on Plaintiff's First, Fourteenth, and
other Eighth Amendment claims.

The Court cannot determine how

Plaintiff could non-frivolously raise these arguments in an appeal
3

of the September 24, 2019 judgment because that judgment concerns

only the Eighth Amendment failure-to-protect claim.

Therefore,

Plaintiff is denied in forma pauperis status for his appeal.

III. Motion to Appoint Counsel

Plaintiff moves the Court to appoint counsel to represent him

on appeal pursuant to 28 U.S.C. § 1915(e)(1).
civil case

"A plaintiff in a

has no constitutional right to counsel."

Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999).

Bass

v.

Although Section

1915 allows courts to appoint counsel in civil cases, the ""court
has broad discretion in making this decision and should appoint

counsel

only

in

exceptional

circumstances."

Id.

(internal

citations omitted).

The Eleventh Circuit considers four factors when determining

whether exceptional circumstances exist:
(1) the type and complexity of the case; (2) whether the
litigant is capable of adequately presenting his or her
case; (3) whether the litigant is in a position to
adequately investigate the case; and (4) whether the
evidence will consist in large part of conflicting
testimony so as to require skill in the presentation of
evidence and in cross-examination.

Watkins v. Broward Sheriff^s Office, 771 F. App'x 902, 906 (11th
Cir. 2019).

See

id.

presenting

Plaintiff's appeal is neither ""novel nor complex."

Plaintiff
his

has

also

case thus far,

demonstrated
having
4

adequate

represented

ability in

himself

with

relative success through the summary judgment stage at which point

counsel was appointed.

The third and fourth factors, which may

have been relevant at the trial level, are no longer applicable.
Unlike at trial. Plaintiff will not have to investigate the case

further, and neither will he be required to present evidence.
Plaintiff's motion to appoint counsel is denied.

IV.

Plaintiff's

Mo-tion for Trial Transcript

motion

requests

prepared for appellate review.

only

that

a

transcript

He does not mention whether he

would like to receive the transcript without fee.

Assuming this

is what Plaintiff asks, the Court denies Plaintiff's motion.

U.S.C.

§

753(f)

transcript

fees

provides
for

that

appellants

be

the

United

permitted

to

States

shall

appeal

in

28

pay

forma

pauperis if the Court certifies that the appeal is not frivolous,
which

it

will

not do.

Therefore,

the

Court

will

not

furnish

Plaintiff with a transcript of the trial proceedings without fee.
Should Plaintiff desire to pay the fee, he may request a copy of
the trial transcript from the official court reporter, Ms. Lisa
Davenport.

V.

Conclusion

Upon consideration, the Court DENIES Plaintiff s motions for
a new trial, for leave to appeal in forma pauperis, to appoint
counsel, and for a trial transcript.

(Doc. Nos. 213, 216, 217,

218.)

ORDER ENTERED at Augusta, Georgia, this

day of November,

2019.

UNITED STATES DISTRICT JOTGE