Allison v. Martin et al

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 $350.00. Motions denied: 13 MOTION to Appoint Counsel filed by Marcus Daniel Allison. Signed by Magistrate Judge Shiva V Hodges on 4/21/2014. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Marcus Daniel Allison,
Plaintiff,
vs.
Oconee County Attorney Tom Martin;
Dep. Sol. David Wagner; Chief P.D.
Wilson Burr; Oconee County Sheriff’s
Office Cpl. Jarrett Price; Sgt. Casey
Bowling; James Singleton, Ret. Sheriff;
and Elizabeth Holcomb, M.D. Lieber
Corr. Inst.; Jointly, Individually and in
their Official Capacities,
Defendants.

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C/A No.: 1:14-668-RBH-SVH

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)(d)
(D.S.C.), pretrial proceedings in this action have been referred to the assigned United
States Magistrate Judge.
On March 14, 2014, the court issued an order directing Plaintiff to provide
documents necessary for initial review. [Entry #8]. Plaintiff complied with the order and
this case is now in proper form.
Plaintiff also files a motion to appoint counsel in this action. [Entry #13]. 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 states that he is unable to afford
counsel, that imprisonment limits his ability to properly investigate, research and litigate
this case, and that “counsel would be better prepared and suited to handle these issues.”
[Entry #13 at 1]. 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 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) of 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 has granted Plaintiff permission to proceed in forma pauperis,
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).
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.

April 24, 2014
Columbia, South Carolina

Shiva V. Hodges
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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