United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Reynolds has filed a petition for writ of mandamus and a
temporary restraining order against the State, seeking an
injunction to halt his criminal proceedings because,
inter alia, his arrest was without probable cause
and involved excessive force, and his trial counsel is
ineffective. Docs. 1, 4, 6 & 8. As of filing, his
criminal misdemeanor case (for loitering and prowling,
disorderly conduct, obstruction and resisting, and
terroristic threats) remains pending. Doc. 1 at 1. The Court
screens his Complaint according to 28 U.S.C. §
bottom, Reynolds seeks to enjoin the state criminal
proceedings, doc. 1 at 12, relief this Court cannot
provide. Younger v. Harris, 401 U.S. 37
(1971) (except in extraordinary circumstances, a federal
court must abstain from deciding issues in an ongoing
criminal proceeding in state court); see Jackson v.
Georgia, 273 Fed.Appx. 812, 813 (11th Cir. 2008)
(“Attentive to the principles of equity, comity, and
federalism, the Supreme Court has recognized that federal
courts should abstain from exercising jurisdiction in suits
aimed at restraining state criminal prosecutions.”).
federal court may not enjoin the state court criminal
proceeding unless: (1) there is a “great and
immediate” danger of irreparable harm to be suffered as
a result of the prosecution; (2) the state law flagrantly and
patently violates of the Constitution; (3) there is a showing
of bad faith or harassment; or (4) other unusual
circumstances call for equitable relief. Mitchum v.
Foster, 407 U.S. 225, 230 (1972) (citing
Younger, 401 U.S. at 46-54). Reynolds offers no such
showing -- the closest he comes is his conclusion that
“the leveled charges [have] been brought in bad faith
to humiliate, embarrass, and harass.” Doc. 8 at 14. But
this is not enough to pull this Court into the state's
business. See, e.g., Dilworth v. City of Everett,
2014 WL 6471780 at *6 (W.D. Wash. Nov. 17, 2014)
(“Plaintiffs have not satisfied the requirements to
plausibly allege the bad faith or harassment exception to the
Younge r abstention doctrine.”). Reynolds must
pursue his claims in his state prosecution.
also asks that counsel be appointed to help him enjoin the
state prosecution. Doc. 9. In this civil case, however, he
has no constitutional right to the appointment of counsel.
Wright v. Langford, 562 Fed.Appx. 769, 777 (11th
Cir. 2014) (citing Bass v. Perrin, 170 F.3d 1312,
1320 (11th Cir. 1999)). “Although a court may, pursuant
to 28 U.S.C. § 1915(e)(1), appoint counsel for an
indigent plaintiff, it has broad discretion in making this
decision, and should appoint counsel only in exceptional
circumstances.” Wright, 562 Fed.Appx. at 777
(citing Bass, 170 F.3d at 1320). Appointment of
counsel in a civil case is a “privilege that is
justified only by exceptional circumstances, such as where
the facts and legal issues are so novel or complex as to
require the assistance of a trained practitioner.”
Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir.
1990) (citing Poole v. Lambert, 819 F.2d 1025, 1028
(11th Cir. 1987), and Wahl v. McIver, 773 F.2d 1169,
1174 (11th Cir. 1985)).
Eleventh Circuit has explained that “the key” to
assessing whether counsel should be appointed “is
whether the pro se litigant needs help in presenting
the essential merits of his or her position to the court.
Where the facts and issues are simple, he or she usually will
not need such help.” McDaniels v. Lee, 405
Fed.Appx. 456, 457 (11th Cir. 2010) (quoting Kilgo v.
Ricks, 983 F.2d 189, 193 (11th Cir. 1993)). A review of
the record and pleadings in this case reveals no such
“exceptional circumstances” warranting the
appointment of counsel.
Terry Reynolds' Complaint (doc. 1) should be
DISMISSED without prejudice and his motion
for a temporary restraining order (doc. 4) should be
DENIED as moot. His motion for appointment
of counsel (doc. 9) is also DENIED.
Reynolds must pay his $350 filing fee. His furnished account
information shows that he has had a $0 average monthly
balance and $0 average monthly deposits in his prison account
during the six months prior to filing his Complaint. Doc. 10
at 1. He therefore does not owe an initial partial filing
fee. See 28 U.S.C. § 1915(b)(1) (requiring an
initial fee assessment “when funds exist, ” under
a specific 20 percent formula). His custodian (or designee)
shall set aside 20 percent of all future deposits from his
account and forward same to the Clerk each time the set aside
amount reaches $10.00, until the balance of the Court's
$350.00 filing fee has been paid in full.
Clerk is DIRECTED to send this Report and
Recommendation (R&R) to Cooke's account custodian
immediately. In the event he is transferred to another
institution, his present custodian shall forward a copy of
this R&R and all financial information concerning payment
of the filing fee and costs in this case to his new
custodian. The balance due from Cooke shall be collected by
the custodian at his next institution in accordance with the
terms of this R&R.
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
REPORTED AND RECOMMENDED.
 The Prison Litigation Reform Act
(“PLRA”) requires federal courts to conduct early
screening of all suits filed by prisoners or detainees for
the purpose of identifying claims that are subject to
immediate dismissal because they are frivolous or malicious,
fail to state a claim for relief, or seek monetary damages
from a defendant who is immune from such relief. 28 U.S.C.
§ 1915A (which applies to prisoner/detainee complaints