Frazier v. Foster

Filing 10

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. Signed by Magistrate Judge Thomas E Rogers, III on 10/28/2015. (dsto, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Darrius Marquis Frazier,

) C/A No. 4:15-3609-GRA-TER
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ORDER
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Plaintiff,
vs.
Michael C. Foster and Raymond Loyd Wiggins,
Defendants.
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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.
MOTION TO APPOINT COUNSEL

This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983, alleging a
violation of his constitutional rights. Plaintiff has filed a motion for an appointment of counsel.
(Doc. # 3).
There is no right to appointed counsel in § 1983 cases. 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 in his motion has not shown that any exceptional
circumstances exist in this case.
This is a typical complaint by a prisoner seeking to pursue civil cases pro se in federal court,
and after a review of the file, 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). In most civil rights cases, the issues 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 request
for a discretionary appointment of counsel is DENIED. (Docs. # 3).

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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). Because the court hereafter grants 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 Without Prepayment of Fees and Affidavit
(Form AO 240) and a Financial Certificate, 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.
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 any
summonses nor shall the Clerk of Court forward this matter to the United States Marshal for service
of process at this time.
The Clerk of Court shall not enter any change of address submitted by Plaintiff which directs
that mail be sent to a person other than Plaintiff unless that person is an attorney admitted to practice
before this court who has entered a formal appearance.
TO PLAINTIFF:
Plaintiff must place the civil action number listed above on any document provided to the
court pursuant to this Order. Any future filings in this case must be sent to ((Post Office Box

*

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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2317, Florence, South Carolina 29503) the address below. 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 (8½ inches by 11 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 (Post Office
Box 2317, Florence, South Carolina 29503) 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.
s/ Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
October 28, 2015
Florence, South Carolina

Plaintiff’s attention is directed to the important warning on the next page.

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IMPORTANT INFORMATION ....PLEASE READ CAREFULLY
WARNING TO PRO SE PARTY OR NONPARTY FILERS
ALL DOCUMENTS THAT YOU FILE WITH The court WILL BE AVAILABLE TO THE
PUBLIC ON THE INTERNET THROUGH PACER (PUBLIC ACCESS TO COURT
ELECTRONIC RECORDS) AND The court’S ELECTRONIC CASE FILING SYSTEM.
CERTAIN PERSONAL IDENTIFYING INFORMATION SHOULD NOT BE INCLUDED IN
OR SHOULD BE REMOVED FROM ALL DOCUMENTS BEFORE YOU SUBMIT THE
DOCUMENTS TO The court FOR FILING.
Rule 5.2 of the Federal Rules of Civil Procedure provides for privacy protection of electronic
or paper filings made with the court. Rule 5.2 applies to ALL documents submitted for filing,
including pleadings, exhibits to pleadings, discovery responses, and any other document submitted
by any party or nonparty for filing. Unless otherwise ordered by the court, a party or nonparty filer
should not put certain types of an individual’s personal identifying information in documents
submitted for filing to any United States District Court. If it is necessary to file a document that
already contains personal identifying information, the personal identifying information should be
“blacked out” or redacted prior to submitting the document to the Clerk of Court for filing. A
person filing any document containing their own personal identifying information waives the
protection of Rule 5.2(a) by filing the information without redaction and not under seal.
1. Personal information protected by Rule 5.2(a):
(a) Social Security and Taxpayer identification numbers. If an individual’s social security
number or a taxpayer identification number must be included in a document, the filer may include
only the last four digits of that number.
(b) Names of Minor Children. If the involvement of a minor child must be mentioned, the filer
may include only the initials of that child.
(c) Dates of Birth. If an individual’s date of birth must be included in a document, the filer may
include only the year of birth.
(d) Financial Account Numbers. If financial account numbers are relevant, the filer may include
only the last four digits of these numbers.
2. Protection of other sensitive personal information – such as driver’s license numbers and alien
registration numbers – may be sought under Rule 5.2(d)(filings made under seal) and (e) (protective
orders).