Cornell v. Bennett

Filing 8

ORDER denying #5 Motion for Leave to Proceed in forma pauperis; denying #7 Motion to Appoint Counsel. Signed by Chief Judge Roberto A. Lange on 4/27/2021. Mailed to David Cornell. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

DAVID ALLEN CORNELL,

4:21-CV-04056-RAL

Petitioner,
ORDER DENYING PETITIONER'S

MOTION FOR LEAVE TO PROCEED IN

vs.

FORMA PAUPERIS AND DENYING

K.BENNETT,WARDEN YANKTON FPC,

PETITIONER'S MOTION FOR THE
APPOINTMENT OF COUNSEL

Respondent.

On April 1, 2021, David Allen Cornell, an inmate at the Yankton Federal Prison Camp in
Yankton, South Dakota, filed a petition for writ of habeas corpus under 28 U.S.C. §2241. Doc. I

This Court ordered Cornell to pay the $5 filing fee because he had not moved for leave to proceed
in forma pauperis. Doc. 4. Now, Cornell moves for leave to proceed in forma pauperis and for
the appointment ofcounsel. Docs. 5,7.

Comell reports average monthly deposits of $373.40 and an average monthly balance of
$1,806.86 in his prisoner trust account. Doc. 6. Comell has the wherewithal to pay the $5 filing
fee. Next, Comell moves for the appointment of counsel. Doc. 7. "A pro se litigant has no

statutory or constitutional right to have counsel appointed in a civil case." Stevens v. Redwing.
146 F.3d 538, 546(8th Cir. 1998). In determining whether to appoint counsel to a pro se litigant,
the Court considers the complexity of the case, the ability of the litigant to investigate the facts,
the existence of conflicting testimony, and the litigant's ability to present his claims. Id At this
time, Comell's claims do not appear to be too complex, and he is able to investigate the facts and
present his claims adequately.

Therefore, it is hereby

ORDERED that ComelTs motion for leave to proceed in forma pauperis, Doc.5,is denied.
Cornell must pay the $5 filing fee by May 27,2021. Failure to comply with this Court's order by
the designated date will result in the dismissal of Cornell's petition for failure to prosecute. It is
further

ORDERED that the Clerk of Court, upon receipt of the $5 filing fee, arrange to serve a

copy of all pleadings of record and this Order on Respondent. It is further
ORDERED that Respondent file an answer, and if he so chooses, a motion to dismiss and
memorandum, within thirty days of service ofthe pleadings. It is finally
ORDERED that Cornell's motion for appointment of counsel, Doc. 7, is denied.

DATED April 37*^ 2021.
BY THE COURT:

ROBERTO A. LANGE
CHIEF JUDGE