Johnson v. Frakes et al

Filing 13

MEMORANDUM AND ORDER that Petitioner may proceed in forma pauperis on appeal. His request for the appointment of counsel is denied without prejudice to reassertion before the Eighth Circuit. No certificate of appealability will issue. (See Filing No. 8 .) The clerk of the court shall provide the Eighth Circuit Court of Appeals with a copy of this order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEREMY L. JOHNSON,
Petitioner,

8:17CV191

vs.
SCOT FRAKES, Director; and BRAD
HANSEN, Warden;

MEMORANDUM
AND ORDER

Respondents.
Petitioner filed a Notice of Appeal (Filing No. 10) on July 11, 2017.
Petitioner appeals from the court’s Order and Judgment dated June 15, 2017
(Filing No. 8; Filing No. 9).
As set forth in Federal Rule of Appellate Procedure 24(a)(3)(A):
(a) Leave to Proceed in Forma Pauperis . . .
(3) Prior Approval. A party who was permitted to proceed in
forma pauperis in the district-court action, or who was
determined to be financially unable to obtain an adequate
defense in a criminal case, may proceed on appeal in forma
pauperis without further authorization, unless:
(A) the district court--before or after the notice of appeal
is filed--certifies that the appeal is not taken in good faith
or finds that the party is not otherwise entitled to proceed
in forma pauperis and states in writing its reasons for the
certification or finding . . . .
The court finds that because Petitioner proceeded in forma pauperis in the
district court, he may now proceed on appeal in forma pauperis without further
authorization.

Petitioner also filed a Motion for Appointment of Counsel, requesting
counsel represent him on appeal. (Filing No. 11.) The court cannot routinely
appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996),
the Eighth Circuit Court of Appeals explained that “[i]ndigent civil litigants do not
have a constitutional or statutory right to appointed counsel. . . . The trial court has
broad discretion to decide whether both the plaintiff and the court will benefit from
the appointment of counsel . . . .” Id. (quotation and citation omitted). No such
benefit is apparent here. The request for the appointment of counsel is therefore
denied without prejudice to reassertion before the Eighth Circuit.
IT IS THEREFORE ORDERED that: Petitioner may proceed in forma
pauperis on appeal. His request for the appointment of counsel is denied without
prejudice to reassertion before the Eighth Circuit. No certificate of appealability
will issue. (See Filing No. 8.) The clerk of the court shall provide the Eighth
Circuit Court of Appeals with a copy of this order.
Dated this 12th day of July, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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