King v. Crocker

Filing 16

ORDER directing Clerk not to authorize service and advising plaintiff to notify Clerk in writing of any change of address. Plaintiff has incurred a debt to the U.S.A. in the amount of $350, Motions terminated: granting [ 8] MOTION for Leave to Proceed in forma pauperis (Restricted Access) filed by Kipper Ken King, denying 13 MOTION to Appoint Counsel filed by Kipper Ken King, denying 9 MOTION for Subpoena filed by Kipper Ken King. Signed by Magistrate Judge Paige J Gossett on 8/23/2011. (jpet, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Kipper Ken King,

) C/A No. 0:11-1387-JMC-PJG
)
Plaintiff,
)
)
vs.
)
)
Suesan Crocker, Spartanburg Parole Office,
)
ORDER
)
Defendant.
)
___________________________________________
This is a civil action filed by a state prisoner. Therefore, in the event that a
limitations issue arises, Plaintiff shall have the benefit of the holding in Houston v. Lack,
487 U.S. 266 (1988) (prisoner's pleading was filed at the moment of delivery to prison
authorities for forwarding to District Court). Under Local Civil Rule 73.02(B)(2) of the
United States District Court for the District of South Carolina, pretrial proceedings in this
action have been referred to the assigned United States Magistrate Judge.
By Order issued on June 22, 2011, Plaintiff was given a specific time frame in which
to bring this case into proper form. (ECF No. 6.) Plaintiff has complied with the Court’s
Order, and this case is now in proper form.
Plaintiff has also submitted a document stating that he needs the “the proper
papers” to have a “witness in court.” This pleading has been construed as a Motion for
Subpoena. (ECF No. 9.) As the case is recommended for summary dismissal, Plaintiff’s
Motion is denied.
PAYMENT OF THE FILING FEE:
By filing this case, Plaintiff has incurred a debt to the United States of America in
the amount of $350. See 28 U.S.C. § 1914. This debt is not dischargeable in the event
Plaintiff seeks relief under the bankruptcy provisions of the United States Code. See 11
U.S.C. § 523(a)(17). Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321
(1996), permits a prisoner to file a civil action without prepayment of fees or security, but
requires the prisoner “to pay the full amount of the filing fee” as funds are available. See
28 U.S.C. § 1915(a),(b). The agency having custody of Plaintiff shall collect payments
from Plaintiff’s prisoner trust account in accordance with 28 U.S.C. § 1915(b)(1) and
(2), until the full filing fee is paid. See Torres v. O’Quinn, 612 F.3d 237, 252 (4th Cir.
2010) (“We hold that 28 U.S.C. § 1915(b)(2) caps the amount of funds that may be
withdrawn from an inmate's trust account at a maximum of twenty percent regardless of
the number of cases or appeals the inmate has filed.”) (emphasis in original).
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Plaintiff has submitted an Application to Proceed Without Prepayment of Fees and
Affidavit (Form AO 240), which is construed as a Motion for Leave to Proceed in forma
pauperis. See 28 U.S.C. § 1915(a)(1), (2). A review of the Motion reveals that Plaintiff
does not have the funds to pay the first installment of the filing fee. Therefore, the amount
due from Plaintiff is currently $350.
Plaintiff’s motion to proceed in forma pauperis is granted.
MOTION TO APPOINT COUNSEL:
Plaintiff has filed a letter in which he requests the appointment of an attorney. (ECF
No. 13.) There is no right to appointed counsel in § 1983 cases. Hardwick v. Ault, 517
F.2d 295 (5th Cir. 1975). As stated in 28 U.S.C. § 1915(e)(1), the court may use its
discretion to appoint counsel for an indigent in a civil action. Smith v. Blackledge, 451 F.2d
1201 (4th Cir. 1971). However, such appointment “should be allowed only in exceptional
cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). Whether exceptional
circumstances are present depends on the type and complexity of the case, and the pro
se litigant’s ability to prosecute it. Whisenant v. Yuam, 739 F.2d 160 (4th Cir. 1984),
abrogated on other grounds by Mallard v. United States Dist. Court for S. Dist. of Iowa, 490
U.S. 296 (1989).
Upon review of the file, the court has determined that there are no exceptional or
unusual circumstances presented at this time which would justify the appointment of
counsel, nor would the plaintiff be denied due process if an attorney were not appointed.
Id. Accordingly, the plaintiff's request for a discretionary appointment of counsel under 28
U.S.C. § 1915(e)(1) is denied.
TO THE CLERK OF COURT:
This case is subject to summary dismissal based on an initial screening conducted
pursuant to 28 U.S.C. §1915 and/or 28 U.S.C. § 1915A. Therefore, the Clerk of Court shall
not issue the summons or forward this matter to the United States Marshal for service of
process at this time.
IT IS SO ORDERED.
_________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
August 23, 2011
Columbia, South Carolina

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