Burke v. Wilcher et al
ORDER denying 33 Motion for Reconsideration. Defendants are ORDERED to respond to plaintiffs motion (doc. 32) within 14 days of service of this Order and address the issue of whether plaintiff has any access to writing utensils and copies. Signed by Magistrate Judge G. R. Smith on 10/05/17. (jlm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
COREY QUINN BURKE,
SHERIFF JOHN T. WILCHER,
Plaintiff seeks reconsideration of the Court’s orders denying the
appointment of counsel, provision of “pens, paper, and copies” by the
prison for use in litigating his case, and the return of the original copies
of his “complaint, motions, and any other document [he has] submitted
to the court.” Docs. 32 & 33; see docs. 8 & 19. He contends that the
prison refuses to provide him access to pens (they are not available from
the commissary or the prison library) and copies (there is no means to
He also contends that this refusal has
“impede[d] his right to litigate properly” (id. at 3), though the Court
notes no slowdown of filed documents or served discovery. 1
Defendants are ORDERED to respond to plaintiff’s motion
(doc. 32) within 14 days of service of this Order and address the issue of
whether plaintiff has any access to writing utensils and copies. See
Bounds v. Smith, 430 U.S. 817, 817 (1977) (while the Constitution does
not require access to any particular number of pens or sheets of paper,
it does require some); Wanninger v. Davenport, 697 F.2d 992, 994 & n.
1 (11th Cir. 1983) (although there may be “some circumstances in which
prison officials might be required to provide photocopying services in
order to preserve a prisoner’s access to the courts,” that right of access
“does not include the right of free unlimited access to a copying
machine.”); see also 28 C.F.R. § 543.11(g).2
“With respect to access-to-court claims . . . a plaintiff first must show actual injury
before seeking relief[.]” Wilson v. Blankenship, 163 F.3d 1284, 1291 (11th Cir. 1998).
Burke’s allegation that his ability to litigate his case has been chilled is belied by his
own actions. He alleges that he is completely deprived of access to pens and papers,
and yet has been able to submit voluminous filings to the Court (see docs. 1, 7, 9, 13,
18, 20, 32, 33 & 34) and propound discovery to various defendants (see doc. 33 at 2).
Plaintiff is reminded that lying under oath, either live or “on paper,” is illegal, see
United States v. Roberts, 308 F.3d 1147, 1155 (11th Cir. 2002); see also Colony Ins.
Co. v. 9400 Abercorn, LLC, 866 F. Supp. 2d 1376, 1378 n. 2 (S.D. Ga. 2012), and is
encouraged to consider withdrawing his motion prior to defendants’ response.
28 C.F.R. § 543.11(g) provides that:
The institution staff shall, upon an inmate’s request and at times scheduled by
staff, duplicate legal documents if the inmate demonstrates that more than
one copy must be submitted to court and that the duplication cannot be
To the extent, however, that Burke again requests copies of things
submitted to the Court, he remains free to request and pay for copies of
court records. 28 U.S.C. § 1914(b). The cost for reproducing any record
or paper is $.50 per page, such fee to be tendered to the Clerk with any
request for copies of court files directed to the Clerk of Court. Judicial
Conference Schedule of Fees at ¶ 4 (effective Dec. 1, 2016). The Court
will not provide him copies of materials that he is able to access and
afford on his own.
Finally, plaintiff has not demonstrated exceptional circumstances
exist warranting the appointment of counsel.
Contrary to Burke’s
characterization of the case, the facts and issues involved are
straightforward -- whether plaintiff is denied access to his public
defender by the prison’s collect call telephone policy -- and counsel is not
needed. See McDaniels v. Lee, 405 F. App’x 456, 457 (11th Cir. 2010);
Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993). Indeed, Burke’s
accomplished by use of carbon paper. The inmate shall bear the cost, and the
duplication shall be done so as not to interfere with regular institution
operations. Staff may waive the cost if the inmate is without funds or if the
material to be duplicated is minimal, and the inmate’s requests for duplication
are not large or excessive.
See also Miller v. Donald, 132 F. App’x 270 n. 3 (11th Cir. 2005) (applying
28 C.F.R. § 543.11(g) to Georgia Department of Corrections’ jails).
contention that complex discovery and depositions of witnesses and
other prisoners will be necessary to substantiate the allegations of the
Complaint (doc. 33) is both premature and somewhat far-fetched in
light of the straightforward allegations of his greenlit Sixth Amendment
See doc. 8 (Order greenlighting service of his Complaint &
denying his motion to appoint counsel). His motion for reconsideration
of the Order denying the appointment of counsel (doc. 33) is DENIED.
SO ORDERED, this 5th
day of October, 2017.
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