McDaniels v. South Carolina, State of

Filing 18

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. Motion granted: 9 MOTION for Leave to Proceed in forma pauperis (Restricted Access) filed by Kevin Wayne McDaniels. Motion denied: 15 MOTION to Appoint Counsel filed by Kevin Wayne McDaniels. Signed by Magistrate Judge Shiva V Hodges on 11/20/2014. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Kevin Wayne McDaniels, REDAC
Plaintiff,
vs.
State of South Carolina; Alan Wilson,
SC Attorney General; Nikki Haley, SC
Governor; Derham Cole, Chief Judge of
Sptg. County; Barry Barnette, Chief
Prosecutor of Spartanburg Co.; Chuck
Wright, Spartanburg Co. Sheriff; Tim
Tucker, Spartanburg Co. Police Officer;
Phil Easler, Spartanburg Co. Police
Officer; Robert Hall, Spartanburg Co.
Public Defender; sued in their individual
and official capacity,
Defendants.

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C/A No.: 1:14-4197-TLW-SVH

ORDER

This is a civil action filed by a federal 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 Civ. Rule 73.02(B)(2)(f)
(D.S.C.), pretrial proceedings in this action have been referred to the assigned United
States Magistrate Judge.
On October 31, 2014, the court allowed Plaintiff an opportunity to provide the
documents necessary for initial review. [ECF No. 6]. Plaintiff complied with the court’s
order and this case is now in proper form.
Plaintiff filed a motion to appoint counsel in this action. [ECF No. 15]. 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). In
support of his motion, Plaintiff states that he is factually innocent, that he is unable to
afford counsel, and states that he needs counsel to investigate his alibi witnesses and to

present argument at trial. [ECF No. 15]. After a review of the motion, the 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 the 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) [ECF No. 15] 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).
Plaintiff has submitted an Application to Proceed in District Court Without
Prepaying Fees or Costs to this court pursuant to 28 U.S.C. § 1915(a)(1), which is
construed as a Motion for Leave to Proceed in forma pauperis. A review of the Motion
reveals that Plaintiff does not have the funds to prepay the filing fee. Plaintiff’s Motion
for Leave to Proceed in forma pauperis [ECF No. 9] is granted.
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. Accordingly, Plaintiff’s motion for service [ECF No. 14]
is denied.

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TO PLAINTIFF:
Plaintiff must place the civil action number listed above (C/A No.: 1:14-4197TLW-SVH) on any document provided to the court pursuant to this order. Any future
filings in this case must be sent to 901 Richland Street, Columbia, South Carolina
29201. All documents requiring Plaintiff’s signature shall be signed with Plaintiff’s full
legal name written in Plaintiff’s own handwriting. Pro se litigants shall not use the
“s/typed name” format used in the Electronic Case Filing System. In all future filings
with this court, Plaintiff is directed to use letter-sized (eight and one-half inches by
eleven inches) paper only, to write or type text on one side of a sheet of paper only and
not to write or type on both sides of any sheet of paper. Plaintiff is further instructed not
to write to the edge of the paper, but to maintain one inch margins on the top, bottom, and
sides of each paper submitted.
Plaintiff is a pro se litigant. Plaintiff’s attention is directed to the following
important notice:
You are ordered to always keep the Clerk of Court advised in writing (901
Richland Street, Columbia, South Carolina 29201) if your address
changes for any reason, so as to assure that orders or other matters that
specify deadlines for you to meet will be received by you. If as a result of
your failure to comply with this order, you fail to meet a deadline set by
this court, your case may be dismissed for violating this order. Therefore, if you have a change of address before this case is ended, you must
comply with this order by immediately advising the Clerk of Court in
writing of such change of address and providing the court with the docket
number of all pending cases you have filed with this court. Your failure to
do so will not be excused by the court.
IT IS SO ORDERED.

November 20, 2014
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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