Taff v. Pate et al

Filing 26

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 $350.00. Motion granted: 2 MOT ION for Leave to Proceed in forma pauperis (Restricted Access) filed by John T Taff. Motion terminated as moot: 17 MOTION for Extension of Time filed by John T Taff. Motion denied: 18 MOTION to Appoint Counsel filed by John T Taff. Signed by Magistrate Judge Paige J Gossett on 5/13/2014. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
John T. Taff,

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Plaintiff,
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v.
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Warden John Pate; Major Walter Worrick;
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Lt. Richard Jenkins; Sgt. Sexton; in their
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individual and official capacity,
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Defendants.
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_____________________________________ )

C/A No. 0:14-294-JFA-PJG

ORDER

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) DSC, pretrial proceedings in this action have
been referred to the assigned United States Magistrate Judge.
By order issued on February 26, 2014, the court allowed Plaintiff an opportunity to bring this
case into proper form for initial review. (ECF No. 8.) The court granted Plaintiff an extension to
comply with the proper form order on March 24, 2014. (ECF Nos. 11, 14.) Plaintiff filed a second
motion for an extension of time to bring this case into proper from on April 14, 2014. (ECF No. 17.)
However, as Plaintiff has submitted the documents necessary for initial review, the second motion
for an extension shall be terminated as moot.
Plaintiff also files a motion seeking the appointment of counsel. (ECF No. 18.) There is no
right to appointed counsel in a case filed pursuant to 42 U.S.C. § 1983. Cf. Hardwick v. Ault, 517
F.2d 295, 298 (5th Cir. 1975). While the court is granted the power to exercise its discretion to
appoint counsel for an indigent in a civil action, 28 U.S.C. § 1915(e)(1); Smith v. Blackledge, 451
F.2d 1201 (4th Cir. 1971), such appointment “should be allowed only in exceptional cases.” Cook
v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). Plaintiff’s motion fails to demonstrate that
exceptional circumstances exist in this case. Rather, Plaintiff alleges that he is unable to afford
counsel, that imprisonment will greatly limit his ability to litigate, and that counsel would better
enable Plaintiff to present evidence and cross examine witnesses. (ECF No. 18 at 1S2.) After a
review of the motion, this court has determined that there are no exceptional or unusual
circumstances presented which would justify the appointment of counsel, nor would Plaintiff be
denied due process if an attorney were not appointed. Whisenant v. Yuam, 739 F.2d 160 (4th Cir.
1984), abrogated on other grounds by Mallard v. U.S. Dist. Court, 490 U.S. 296 (1989). The issues
in most civil rights cases are not complex, and whenever such a case brought by an uncounseled
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litigant goes to trial, the court outlines proper procedure so the uncounseled litigant will not be
deprived of a fair opportunity to present his or her case. Accordingly, Plaintiff’s motion for a
discretionary appointment of counsel under 28 U.S.C. §1915 (e)(1) 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). The Prison
Litigation Reform Act (“PLRA”), 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). As the court grants
Plaintiff permission to proceed in forma pauperis below, 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 $350 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).
Plaintiff has submitted an Application to Proceed Without Prepayment of Fees and Affidavit
(Form AO 240) (ECF No. 2), a Financial Certificate (ECF No. 18-4 at 1), which are 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 for Leave to Proceed in forma pauperis is granted. (ECF No. 2.)
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
summonses or forward this matter to the United States Marshal for service of process at this time.
IT IS SO ORDERED.

May 13, 2014
Columbia, South Carolina

___________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE

*

Effective May 1, 2013, an administrative fee of $50 is added to the filing fee of $350. The $50
administrative fee, however, is not applicable to in forma pauperis cases.
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