Reynolds v. State of Georgia

Filing 12

REPORT AND RECOMMENDATIONS dismissing without prejudice 1 MOTION for Writ of Mandamus, denying as moot 4 MOTION for Temporary Restraining Order, and DENYING 9 MOTION to Appoint Counsel filed by Terry Reynolds. Objections to R&R due by 9/12/2017. Signed by Magistrate Judge G. R. Smith on 8/29/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
TERRY REYNOLDS,
Petitioner,
v.
STATE OF GEORGIA,
Respondent.

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CV417-069

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REPORT AND RECOMMENDATION
Terry Reynolds has filed a petition for writ of mandamus and a
temporary restraining order against the State, seeking an injunction to
halt his criminal proceedings because, inter alia, his arrest was without
probable cause and involved excessive force, and his trial counsel is
ineffective. Docs. 1, 4, 6 & 8. As of filing, his criminal misdemeanor
case (for loitering and prowling, disorderly conduct, obstruction and
resisting, and terroristic threats) remains pending. Doc. 1 at 1. The
Court screens his Complaint according to 28 U.S.C. § 1915A. 1

1

The Prison Litigation Reform Act (“PLRA”) requires federal courts to conduct
early screening of all suits filed by prisoners or detainees for the purpose of
identifying claims that are subject to immediate dismissal because they are frivolous

At

bottom,

Reynolds

seeks

to

enjoin

the

state

criminal

proceedings, doc. 1 at 12, relief this Court cannot provide. 2 Younger v.

Harris, 401 U.S. 37 (1971) (except in extraordinary circumstances, a
federal court must abstain from deciding issues in an ongoing criminal
proceeding in state court); see Jackson v. Georgia, 273 F. App’x 812, 813
(11th Cir. 2008) (“Attentive to the principles of equity, comity, and
federalism, the Supreme Court has recognized that federal courts
should abstain from exercising jurisdiction in suits aimed at restraining
state criminal prosecutions.”).
A federal court may not enjoin the state court criminal proceeding
unless: (1) there is a “great and immediate” danger of irreparable harm
to be suffered as a result of the prosecution; (2) the state law flagrantly
and patently violates of the Constitution; (3) there is a showing of bad

or malicious, fail to state a claim for relief, or seek monetary damages from a
defendant who is immune from such relief. 28 U.S.C. § 1915A (which applies to
prisoner/detainee complaints against governmental entities or officials, whether
plaintiff is proceeding IFP or has paid the filing fee).
2

Reynolds merges two separate concepts in his Complaint: an injunction and a writ
of mandamus. From the relief he is seeking, it appears that he is just asking for an
injunction. And anyway, a federal court does not have the authority to issue a writ of
mandamus as to a state court. See Schneider v. City of Hinesville, 2010 WL 2942644,
at *1 (S.D. Ga. June 28, 2010) (“[F]ederal courts have no authority to issue writs of
mandamus to direct state courts or their judicial officers in the performance of their
duties.”) (quoting Haggard v. Tennessee, 421 F.2d 1384, 1386 (6th Cir. 1970)).
2

faith or harassment; or (4) other unusual circumstances call for
equitable relief. Mitchum v. Foster, 407 U.S. 225, 230 (1972) (citing

Younger, 401 U.S. at 46-54). Reynolds offers no such showing -- the
closest he comes is his conclusion that “the leveled charges [have] been
brought in bad faith to humiliate, embarrass, and harass.” Doc. 8 at 14.
But this is not enough to pull this Court into the state’s business. See,

e.g., Dilworth v. City of Everett, 2014 WL 6471780 at *6 (W.D. Wash.
Nov. 17, 2014) (“Plaintiffs have not satisfied the requirements to
plausibly allege the bad faith or harassment exception to the Younger
abstention doctrine.”). Reynolds must pursue his claims in his state
prosecution. 3
Plaintiff also asks that counsel be appointed to help him enjoin
the state prosecution. Doc. 9. In this civil case, however, he has no

3

Though a pro se prisoner normally should be given an opportunity to amend his
complaint at least once, see, e.g., Johnson v. Boyd, 568 F. App’x 719, 724 (11th Cir.
2014); Duff v. Steub, 378 F. App’x 868, 872 (11th Cir. 2010), “a district court need not
allow amendment if the amended complaint would still be subject to dismissal.”
Jenkins v. Walker, 620 F. App’x 709, 711 (11th Cir. 2015). Plaintiff’s Younger claim
is dead on arrival, and does not appear amendable.
Despite the lack of any apparent basis for viable amendment, plaintiff’s
opportunity to object to this Report and Recommendation within 14 days of service,
see infra, affords him an opportunity to resuscitate his case. He may also submit an
Amended Complaint during that period, if he believes it would cure the legal defects
discussed above. See Willis v. Darden, 2012 WL 170163 at * 2 n.3 (S.D. Ga. Jan. 19,
2012) (citing Smith v. Stanley, 2011 WL 1114503 at * 1 (W.D. Mich. Jan. 19, 2011)).
3

constitutional right to the appointment of counsel. Wright v. Langford,
562 F. App’x 769, 777 (11th Cir. 2014) (citing Bass v. Perrin, 170 F.3d
1312, 1320 (11th Cir. 1999)).

“Although a court may, pursuant to

28 U.S.C. § 1915(e)(1), appoint counsel for an indigent plaintiff, it has
broad discretion in making this decision, and should appoint counsel
only in exceptional circumstances.” Wright, 562 F. App’x at 777 (citing

Bass, 170 F.3d at 1320). 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.”

Fowler v. Jones, 899 F.2d

1088, 1096 (11th Cir. 1990) (citing Poole v. Lambert, 819 F.2d 1025,
1028 (11th Cir. 1987), and Wahl v. McIver, 773 F.2d 1169, 1174 (11th
Cir. 1985)).
The Eleventh Circuit has explained that “the key” to assessing
whether counsel should be appointed “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 are simple, he or she usually will
not need such help.” McDaniels v. Lee, 405 F. App’x 456, 457 (11th Cir.
2010) (quoting Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993)). A
4

review of the record and pleadings in this case reveals no such
“exceptional circumstances” warranting the appointment of counsel.
In sum, Terry Reynolds’ Complaint (doc. 1) should be DISMISSED
without prejudice and his motion for a temporary restraining order (doc.
4) should be DENIED as moot. His motion for appointment of counsel
(doc. 9) is also DENIED.
Meanwhile, Reynolds must pay his $350 filing fee. His furnished
account information shows that he has had a $0 average monthly balance
and $0 average monthly deposits in his prison account during the six
months prior to filing his Complaint. Doc. 10 at 1. He therefore does not
owe an initial partial filing fee. See 28 U.S.C. § 1915(b)(1) (requiring an
initial fee assessment “when funds exist,” under a specific 20 percent
formula). His custodian (or designee) shall set aside 20 percent of all
future deposits from his account and forward same to the Clerk each
time the set aside amount reaches $10.00, until the balance of the
Court’s $350.00 filing fee has been paid in full.
The

Clerk

is

DIRECTED

to

send

this

Report

and

Recommendation (R&R) to Cooke’s account custodian immediately. In
the event he is transferred to another institution, his present custodian
5

shall forward a copy of this R&R and all financial information concerning
payment of the filing fee and costs in this case to his new custodian. The
balance due from Cooke shall be collected by the custodian at his next
institution in accordance with the terms of this R&R.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court’s Local Rule 72.3.

Within 14 days of

service, any party may file written objections to this R&R with the
Court and serve a copy on all parties.
captioned

“Objections

to

Magistrate

The document should be
Judge’s

Report

and

Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
6

648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F.
App’x 542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this
August, 2017.

7

29th

day of