Jackson v. Lazaroff

Filing 22

Opinion & Order signed by Judge James S. Gwin on 2/9/16. The Court, for the reasons set forth in this order, grants the petitioner's motion to appeal in forma pauperis and denies the motion for appointment of counsel. (Related Docs. 20 and 21 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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MAURICE JACKSON,
:
:
Petitioner,
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v.
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:
ALAN J. LAZAROFF,
:
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Respondent.
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:
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CASE NO. 1:15-CV-00253
OPINION & ORDER
[Resolving Doc. 20]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On October 28, 2015, this Court dismissed without prejudice Petitioner Jackson’s writ of
habeas corpus. 1 Petitioner Jackson now files a motion to appeal in forma pauperis and a motion
for appointment of counsel. For the below reasons, this Court GRANTS Jackson’s in forma
pauperis motion and DENIES Jackson’s motion for appointment of counsel.
I.

In Forma Pauperis

“It is settled law that filing a notice of appeal with the district court divests the district
court of jurisdiction to act in a case, except on remedial matters unrelated to the merits of the
appeal.” 2 One of these remedial matters unrelated to the merits of the appeal is a motion to
proceed in forma pauperis on the appeal.
The Rules of Appellate Procedure “explicitly contemplate a number of other actions to be
taken by the district court during the pendency of an appeal.” 3 “[Federal Rule of Appellate
Procedure] Rule 24(a) requires a party seeking to proceed in forma pauperis to so move in the
district court.” 4 A party seeking to appeal in forma pauperis does not always need explicit district

1

Doc. 14.
Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't of Nat. Res., 71 F.3d 1197, 1203 (6th Cir. 1995).
3
§ 3949.1Filing the Notice of Appeal, 16A Fed. Prac. & Proc. Juris. § 3949.1 (4th ed.).
4
Id.
2

Case No. 15-cv-00253
Gwin, J.
court approval. A party seeking to proceed on appeal in forma pauperis does not need district
court approval if, (1) the district court permitted a party to proceed in forma pauperis in the
district court, and (2) the district court certifies that the party can take an appeal in good faith. 5
This Court has not previously permitted Petitioner Jackson to proceed in forma pauperis.
Petitioner Jackson therefore needs this Court's approval. A district court can withhold approval
and deny a motion to appeal in forma pauperis when (1) the district court “certifies in writing
that [the appeal] is not taken in good faith,” 6, or when (2) the party seeking to proceed in forma
pauperis does not show an inability to pay. 7
This Court has already certified that Petitioner Jackson could take an appeal in good
faith. 8 To succeed on this motion, then, Petitioner Jackson need only show an inability to pay.
Jackson filed an application to proceed without prepayment of fees which detailed his inability to
pay. 9 Jackson’s motion to succeed in forma pauperis is thus granted.
II.

Appointment of Counsel

Jackson also moves for the appointment of counsel. The appointment of counsel in a civil
proceeding is not a constitutional right and is justified only by exceptional circumstances. 10
Nonetheless, Plaintiff Jackson says that the Court should appoint counsel for him because
he is “a layman unskilled in the profession of Law.” 11
While the Court recognizes the difficulties facing pro se litigants, the Court finds no
exceptional circumstances warranting the appointment of counsel in this case. The legal issues
presented in this case are not particularly complex. Moreover, Plaintiff Jackson’s Complaint,
5

Fed. R.App. P. 24(a)(3).
28 U.S.C. § 1915(a)(3).
7
Fed. R.App. P. 24(a).
8
Doc. 14.
9
Doc. 21.
10
Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993).
11
Doc. 20.
6

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Case No. 15-cv-00253
Gwin, J.
Motion to Proceed in Forma Pauperis, and Motion for Appointment of Counsel suggest that he
has some ability to prosecute this lawsuit and draft legal documents on his own.
III.

Conclusion

Accordingly, the Court GRANTS Petitioner’s motion to proceed in forma pauperis and
DENIES the Plaintiff's motion seeking the appointment of counsel.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: February 9, 2016

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