Twitty v. Nationwide Insurance Comp et al

Filing 41

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 [ 29] MOTION for Leave to Proceed in forma pauperis (Restricted Access) filed by Irving E Twitty, denying 28 MOTION to Appoint Counsel filed by Irving E Twitty, denying 27 MOTION Request for Processing and Service of Summons and Complaint filed by Irving E Twitty. Signed by Magistrate Judge Paige J Gossett on 8/8/2011. (jpet, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Irving E. Twitty,

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Plaintiff,
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vs.
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Nationwide Insurance Comp;
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Patricia Dugan, CPCU, AiC;
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Cherylon Dean, Claims Invest.;
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Dennis Gillilan, Claims Manag;
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Alicia W. Cornelius, Regulator;
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Wanda W. Smith; Tijuana L. Crisp;
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Owner of Jeep Grand Cherokee;
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Geoffrey W. Gibbon;
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Grenville D. Morgan, Jr.;
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Mr. Judge John C. Few,
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Defendants.
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____________________________________ )

C/A No. 6:09-2381-RBH-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) 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 opinion
dated May 24, 2011, this court’s previous dismissal of the instant complaint was vacated
by the Fourth Circuit Court of Appeals and remanded to this court for further consideration.
Plaintiff has filed a Motion to Appoint Counsel. (ECF No. 28.) The law is clear that
a plaintiff in a civil rights case under § 1983 has no right to court-appointed counsel.
Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975). The court however has discretionary
authority to appoint counsel “in exceptional cases,” in a civil action brought by a litigant
proceeding in forma pauperis. Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975);
28 U.S.C. § 1915(e)(1). The pleadings do not present unusual circumstances to justify the
appointment of counsel, nor will Plaintiff be denied due process if an attorney is not
appointed. Accordingly, the plaintiff's request for a discretionary appointment of counsel
under 28 U.S.C. § 1915(e)(1) is denied.
Plaintiff has also filed a Motion for Processing and Service of Summons and
Complaint. (ECF No. 27.) Because this case is subject to summary dismissal, this motion
is denied.
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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). 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).
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). (ECF No. 29.) 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.
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.
_________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
August 8, 2011
Columbia, South Carolina

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