United States District Court, S.D. Georgia, Savannah Division
ORDER AND REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY, UNITED STATES MAGISTRATE JUDGE
pro se and in forma pauperis, Quentin Bigby
brings this 42 U.S.C. § 1983 action against his treating
physician at Coastal State Prison (CSP). The Court granted
plaintiff's request to pursue his case in forma
pauperis (IFP), doc. 6, and he returned the necessary
forms. Docs. 7 & 8. The Court now screens the Complaint
pursuant to 28 U.S.C. § 1915A, which requires the
immediate dismissal of any pro se complaint that
fails to state at least one actionable claim against a
governmental entity or official.
suffered a gunshot wound to his “left flank” in
2009, and due to his significant injuries to his spleen,
back, and spinal cord, is wheelchair-bound and suffers from
nerve damage. Doc. 1 at 6. While housed at Jackson State
Prison in February 2018, he was referred to a pain specialist
for consultation. Id. Prior to being seen by the
pain specialist, however, he was transferred to CSP.
Id. While at CSP, Dr. Awe sent Bigby on a
“medical call-out to (A.S.M.P.), ” but staff there
did not address plaintiff's pain complaints. Id.
Indeed, despite plaintiff's repeated requests and filing
of half a dozen grievances requesting referral, Dr. Awe has
declined to refer Bigby to a pain specialist. Id.
Bigby seeks an “emergency preliminary injunction”
ordering access to a pain specialist and “not less
than” $50, 000 in damages.
threshold matter, Bigby admits that he has not yet fully
exhausted his administrative remedies. Doc. 1 at 3-5. Failure
to exhaust administrative remedies is an affirmative defense,
and inmates are not required to specially plead or
demonstrate exhaustion in their complaint. Jones v.
Bock, 549 U.S. 199, 216 (2007). Normal pleading rules
still apply to prisoner conditions-of-confinements suits,
however. Id. at 214-15. When a prisoner's
failure to exhaust is apparent on the face of the complaint,
making it clear that the prisoner cannot state a claim for
relief, dismissal is warranted under 28 U.S.C. § 1915A.
Id. at 214-15. Bigby filed a grievance on June 11,
2018, but had not received any response by October 15, 2018
(when he filed the Complaint). Doc. 1 at 3. In other words,
he had not received a denial or other final resolution to his
grievance, much less appealed that denial to the highest
level possible according to the prison's administrative
procedures. Id. at 3-5. Because Bigby has not
exhausted his admittedly available administrative remedies
prior to filing suit, his claims must be dismissed without
prejudice. See, e.g., Gill v. Deal, 2018 WL 3650269
at *3 (S.D. Ga. Aug. 1, 2018); Sewell v. Ramsey,
2007 WL 201269 at *2 (S.D. Ga. Jan. 24, 2007).
a pro se prisoner normally should be given an
opportunity to amend his complaint at least once, see,
e.g., Johnson v. Boyd, 568 Fed.Appx. 719, 724 (11th Cir.
2014); Duff v. Steub, 378 Fed.Appx. 868, 872 (11th
Cir. 2010), “a district court need not allow amendment
if the amended complaint would still be subject to
dismissal.” Jenkins v. Walker, 620 Fed.Appx.
709, 711 (11th Cir. 2015). Plaintiff's medical care
claims are unexhausted and thus dead on arrival, and do not
also asks the Court to appoint counsel to assist him with the
case. Doc. 4. In this civil case, however, plaintiff 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.
plaintiff is incarcerated, this Court has repeatedly found
that “prisoners do not receive special consideration
notwithstanding the challenges of litigating a case while
incarcerated.” See, e.g., Hampton v.
Peeples, 2015 WL 4112435 at *2 (S.D. Ga. July 7, 2015).
“Indeed, the Eleventh Circuit has consistently upheld
district courts' decisions to refuse appointment of
counsel in 42 U.S.C. § 1983 actions similar to this case
for want of exceptional circumstances.” Id.
(citing Smith v. Warden, Hardee Corr. Inst., 597
Fed.Appx. 1027, 1030 (11th Cir. 2015); Wright, 562
Fed.Appx. at 777; Faulkner v. Monroe Cty. Sheriff's
Dep't, 523 Fed.Appx. 696, 702 (11th Cir. 2013);
McDaniels, 405 Fed.Appx. at 457; Sims v.
Nguyen, 403 Fed.Appx. 410, 414 (11th Cir. 2010);
Fowler, 899 F.2d at 1091, 1096; Wahl, 773
F.2d at 1174). This case is not so complex, legally or
factually, as to prevent plaintiff from presenting “the
essential merits of his position” to the Court. His
request for appointment of counsel is
Quentin Bigby's Complaint should be DISMISSED
without prejudice and his request for counsel is
DENIED. Meanwhile, it is time for plaintiff
to pay his filing fee. His PLRA paperwork reflects $0 in
average monthly deposits over the six month period prior to
the date of his Prison Account Statement. Doc. 7. He
therefore owes no 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). Plaintiff's custodian (or designee)
shall set aside 20 percent of all future deposits to his
account, then forward those funds 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
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).
ORDERED AND REPORTED AND RECOMMENDED.