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Owens v. Lowndes County Sheriff Department

United States District Court, M.D. Georgia, Valdosta Division

June 20, 2017

RODRIQUEZ ANTONIO OWENS, Plaintiff,
v.
LOWNDES COUNTY SHERIFF DEPARTMENT, Defendant.

          ORDER

          HUGH LAWSON, SENIOR JUDGE

         Pro se Plaintiff Rodriquez Antonio Owens, who is currently incarcerated at the Lowndes County Jail in Valdosta, Georgia, has filed a civil rights complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983 and two motions to amend this complaint (ECF Nos. 10, 11). Plaintiff also seeks to proceed in this action without prepaying the filing fee (ECF Nos. 2, 6) and also requests appointed counsel (ECF No. 9). Because Plaintiff is a prisoner “seek[ing] redress from a governmental entity or [an] officer or employee of a governmental entity, ” the Court is required to conduct a preliminary screening of his claims. See 28 U.S.C. § 1915A(a). After conducting this review, the Court finds that (1) Plaintiff may proceed in forma pauperis; (2) Plaintiff is not entitled to appointed counsel; and (3) Plaintiff has failed to state a viable claim upon which relief may be granted. Plaintiff's Complaint is accordingly DISMISSED without prejudice pursuant to 28 U.S.C. § 1915A(b)(1).

         I. Plaintiff's Motion to Proceed in forma pauperis

         Section 1915 allows the district courts to authorize the commencement of a civil action without prepayment of the normally-required fees upon a showing that the plaintiff is indigent and financially unable to pay the filing fee. A prisoner seeking to proceed in forma pauperis (“IFP”) under this section must provide the district court with both (1) an affidavit in support of his claim of indigence and (2) a certified copy of his prison “trust fund account statement (or institutional equivalent) for the 6-month period immediately preceding the filing of the complaint.” § 1915(b).

         In this case, Plaintiff's pauper's affidavit and the account information he was able to provide show that he is currently unable to prepay the Court's filing fee. Plaintiff's motions to proceed in forma pauperis (ECF Nos. 2, 6) are thus GRANTED. Plaintiff, however, is still obligated to pay the full balance of the filing fee, in installments, as set forth in § 1915(b) and explained below. It is accordingly requested that the CLERK forward a copy of this ORDER to the business manager of the facility in which Plaintiff is incarcerated so that withdrawals from his account may commence as payment towards the filing fee. The district court's filing fee is not refundable, regardless of the outcome of the case, and must therefore be paid in full even if the Plaintiff's Complaint (or any part thereof) is dismissed prior to service.

         A. Directions to Plaintiff's Custodian

         It is hereby ORDERED that the warden of the institution wherein Plaintiff is incarcerated, or the sheriff of any county wherein he is held in custody, and any successor custodians, each month cause to be remitted to the Clerk of this Court twenty percent (20%) of the preceding month's income credited to Plaintiff's account at said institution until the $350.00 filing fee has been paid in full. In accordance with provisions of the PLRA, Plaintiff's custodian is hereby authorized to forward payments from the prisoner's account to the Clerk of Court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. It is further ORDERED that collection of monthly payments from Plaintiff's trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of Plaintiff's lawsuit or the granting of judgment against him prior to the collection of the full filing fee.

         B. Plaintiff's Obligations Upon Release

         Pursuant to provisions of the PLRA, in the event Plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay any balance due on the filing fee in this proceeding until said amount has been paid in full; Plaintiff shall continue to remit monthly payments as required by the PLRA. Collection from Plaintiff of any balance due on the filing fee by any means permitted by law is hereby authorized in the event Plaintiff is released from custody and fails to remit payments.

         II. Plaintiff's Motion for Appointed Counsel

         Plaintiff has also filed a motion for appointment of counsel (ECF No. 9). Under 28 U.S.C. § 1915(e)(1), the Court “may request an attorney to represent any person unable to afford counsel.” There is, however, “no absolute constitutional right to the appointment of counsel” in a § 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (per curiam). 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 claims and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989) (en banc).

         In this case, Plaintiff has filed a complaint in a document substantially similar to the Court's standard § 1983 form. The Court is required to review the Complaint to determine whether Plaintiff's allegations state a colorable legal claim. This process is routine in pro se prisoner actions and is thus not an “exceptional circumstance” justifying appointment of counsel. The facts stated in Plaintiff's Complaint are not complicated, and the law governing Plaintiff's claims is neither novel nor complex. Plaintiff's motion to appoint counsel (ECF No. 9) is accordingly DENIED.

         III. Preliminary Screening

         A. Stand ...


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