Herndon v. Tanner et al

Filing 15

ORDER ADOPTING 13 REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED that Plaintiff's request for appointment of counsel is DENIED; IT IS FURTHER ORDERED that Ronald Herndon's Section 1983 claims against the defendants, Warden Robert Tanner , Carla Tullos and Major Mizell are DISMISSED WITH PREJUDICE as frivolous and otherwise for failure to state a claim for which relief can be granted in accordance with 28 U.S.C. 1915(e) and 1915A and 42 U.S.C. 1997e. Signed by Judge Nannette Jolivette Brown on 9/1/2017.(mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RONALD HERNDON

CIVIL ACTION

VERSUS

NO. 17-02350

ROBERT TANNER, ET AL

SECTION “G” (4)
ORDER

On July 26, 2017, the Magistrate Judge recommended that the Court dismiss Plaintiff
Ronald Herndon’s (“Plaintiff”) claims with prejudice as frivolous and otherwise for failure to state
a claim for which relief can be granted in accordance with 28 U.S.C. § 1915(e), 28 U.S.C. § 1915A
and 42 U.S.C. § 1997e.1 Pursuant to 28 U.S.C. § 636(b)(1), the parties had fourteen days to file
objections to the Report and Recommendation. To date no objections have been filed. Instead,
Plaintiff has filed a “Notice,” requesting that an attorney be appointed to represent him or that his
cases be withdrawn if an attorney cannot be appointed.2
The Fifth Circuit has recognized that “[a] district court should appoint counsel in a civil
rights case only if presented with exceptional circumstances.”3 A district court should consider
four factors in making this determination:
(1) the type and complexity of the case; (2) whether the indigent litigant is capable
of adequately presenting his case; (3) whether the litigant is in a position to
investigate the case adequately; (4) whether the evidence will consist in large part
of conflicting testimony, thus requiring skill in presentation and crossexamination.4
Where it is clear that a civil rights claim should be dismissed as frivolous, the district court does

1 Rec. Doc. 13.
2 Rec. Doc. 14.
3 Norton v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997).
4 Id. (quoting Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).

not abuse its discretion in denying a motion to appoint counsel.5
Here, the Magistrate Judge recommends that the complaint be dismissed as frivolous, and
Petitioner has not submitted any objections to the Report and Recommendation. The Court, having
considered the complaint, the record, the applicable law, the Report and Recommendation of the
United States Magistrate Judge, and the failure of any party to file an objection to the Magistrate
Judge’s Report and Recommendation, hereby approves the Report and Recommendation of the
United States Magistrate Judge and adopts it as its opinion in this matter. Moreover, because the
Court has determined that the complaint should be dismissed as frivolous, Plaintiff’s request for
appointment of counsel is denied. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s request for appointment of counsel is
DENIED;
IT IS FURTHER ORDERED that Ronald Herndon’s Section 1983 claims against the
defendants, Warden Robert Tanner, Carla Tullos and Major Mizell are DISMISSED WITH
PREJUDICE as frivolous and otherwise for failure to state a claim for which relief can be granted
in accordance with 28 U.S.C. § 1915(e) and § 1915A and 42 U.S.C. § 1997e.

1st
NEW ORLEANS, LOUISIANA, this _____ day of September, 2017.

__________________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

5 Id.