United States District Court, M.D. Georgia, Macon Division
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
pending before the Court is Plaintiff's motions for leave
to proceed IFP (ECF Nos. 15, 16), motions to appoint counsel
(ECF Nos. 15, 16), and motions for the issuance of subpoenas
(ECF Nos. 13, 16). For the reasons discussed herein,
Plaintiff's motions to proceed IFP are denied as moot,
and Plaintiff's motions to appoint counsel and motions
for subpoenas are denied.
filed this § 1983 action on October 31, 2016. He asserts
that on April 23, 2015, Defendant Justin Gilliam-a “CO
II cert team officer” at Wilcox State Prison- punched
him in the face, grabbed him by the throat, pushed him into a
wall, and yelled obscenities at him. Compl. 4-5, ECF No. 1.
Plaintiff's first motion to proceed in forma
pauperis (ECF No. 2) was granted on February 1, 2017
(ECF No. 10). Plaintiff's excessive force claim was
allowed to proceed for further factual development and
service was ordered on Defendant Gilliam. Order 4, Feb. 1,
2017, ECF No. 10. Defendant Gilliam filed an Answer on April
18, 2017 (ECF No. 21). Prior to the filing of Defendant's
Answer, Plaintiff filed the motions presently pending before
Motions to Proceed IFP
filed the presently pending motions for leave to proceed IFP
on February 27, 2017 (ECF Nos. 15, 16). As he was already
permitted to proceed IFP without prepayment of the filing fee
on February 1, 2017, the motions at ECF No. 15 and 16 are
denied as moot.
Motions to Appoint Counsel
with his motions for leave to proceed IFP, Plaintiff filed
motions for the appointment of counsel (ECF Nos. 15, 16).
Under 28 U.S.C. § 1915(e)(1), the district court
“may request an attorney to represent any person unable
to afford counsel.” However, there is “no
absolute constitutional right to the appointment of
counsel” in a section 1983 lawsuit. Poole v.
Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987).
Appointment of counsel is a privilege that is justified only
by exceptional circumstances. Lopez v. Reyes, 692
F.2d 15, 17 (5th Cir. 1982). In deciding whether legal
counsel should be provided, the Court considers, among other
factors, the merits of Plaintiff's claim and the
complexity of the issues presented. Holt v. Ford,
682 F.2d 850, 853 (11th Cir. 1989).
has set forth the essential factual allegations underlying
his claims, and the applicable legal doctrines are readily
apparent. The Court thus finds that the essential facts and
legal doctrines in this case are ascertainable by Plaintiff
without the assistance of an attorney. Plaintiff has not
alleged the exceptional circumstances justifying appointment
of counsel under Holt. Accordingly, Plaintiff's
motions are denied.
Motions for the Issuance of a Subpoena
January 28, 2017, Plaintiff sent a letter to the Court which
has been docketed as a motion for the issuance of a subpoena.
(ECF No. 13.) Plaintiff requests a copy of a subpoena so that
he may obtain “copies of [his] medical records and
copies of witness statements.” Id. Plaintiff
sent a second such letter on February 26, 2017, requesting a
“copy of a subpoena motion” and a “copy of
a production order.” (ECF No 16-2.) This letter was also
docketed as a motion for issuance of a subpoena. It appears
that Plaintiff does not fully understand discovery mechanisms
available under this Court's February 1, 2017 Order and
the Federal Rules of Civil Procedure. The Court files this
Order to clarify the Discovery portion of its February 1,
2017 Order. Order 6-7, Feb. 1, 2017, ECF No. 10.
Plaintiff is proceeding IFP, he is required to fund the
expenses of litigation like any other litigant. See
Easley v. Dep't of Corr., 590 F.App'x 860, 868
(11th Cir. 2014). Further, the Court does not provide legal
advice or form discovery requests.
can obtain the “witness statements” he seeks by
deposing these witnesses. Plaintiff can depose any witness as
described in Rule 30 of the Federal Rules of Civil Procedure
or through a deposition by written questions as described in
Rule 31. However, depositions cost money including the costs
to record the deposition and to transcribe the recorded
testimony. If Plaintiff cannot pay the costs of a deposition,
he has the following means of obtaining the testimony sought:
If the witness is a party to the lawsuit, Plaintiff can
propound interrogatories to that party pursuant to Rule 33.
See also Order 7, Feb. 1, 2017, ECF No. 10. If the
witness is not a party to the lawsuit, Plaintiff cannot use
interrogatories. Plaintiff may instead request that the
witness execute an affidavit detailing their personal
knowledge of the ...