Opinion
CV421-055
03-07-2022
KEVIN G. JONES, Plaintiff, v. GOVERNOR BRIAN KEMP., et al., Defendants.
ORDER
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Kevin Jones has filed this case that appears to challenge the circumstances of a thirty-year-old arrest and prosecution and ongoing incarceration. See generally docs. 1 & 24. He appealed the undersigned's denial of his Motion to Appoint Counsel, see doc. 19, which was dismissed, doc. 30. He has filed multiple documents, variously captioned, that request review of that denial. See doc. 22 (“Plaintiffs Motion Emergency Notice of Appeal Under the All Writs Act, ” seeking “to appeal this Honorable Court[']s . . . Order to deny appointment of counsel . . .”), doc. 28 (“Emergency Appeal and Motion-Request for Appointment of Counsel” and brief in support), doc. 29 (seeking “a certificate striking . . . final or partial Court Order's [sic] denying appointment of counsel . . .”), 1 doc. 32 (requesting appointment of “a special appellate class pre-trial attorney”). He has also filed an Amended Complaint, doc. 24, and various other motions, see docs. 13, 14, 25. Since he has been granted leave to proceed in forma pauperis, doc. 4, and has returned the required forms, docs. 9 & 12, the Court will also screen his Amended Complaint, pursuant to 28 U.S.C. § 1915A.
I. Appointment of Counsel
The Court has already explained that Jones is not entitled to appointed counsel in this civil case. See doc. 11 at 2 (citing, inter alia., Wright v. Langford, 562 Fed.Appx. 769, 777 (11th Cir. 2014)). As previously explained, “ ‘[a]ppointment 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.'” Id. (quoting Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990)). Based on a review of all Jones' filings related to appointment of counsel, docs. 13, 22, 23, 27, 28, 28-1, 29 & 32, the Court can discern no “exceptional circumstances” that warrant 2 appointment of counsel. Accordingly, to the extent that his motions seek appointment of counsel, they are DENIED. Docs. 22, 28, 29 & 32.
Several of the motions include references, which appear related to claims asserted in his Complaint and Amended Complaint. The Court discusses those facts below.
The Court notes that several of Jones' pleadings, including those related to the appointment of counsel, reference “intellectual disability.” See, e.g., doc. 32 (“Indigent[, ] ignorant[, ] mentally ill, disabled, I'm unable to present myself properly.”). As the Court previously explained, “ ‘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.'” Doc. 11 at 3 (quoting McDaniels v. Lee, 405 Fed.Appx. 456, 457 (11th Cir. 2010)). As discussed below, Jones' pleadings are not hard to understand, as far as they go. The defect in his pleadings is that they do not present sufficient facts to discern specific claims. However, the pleadings clearly indicate that Jones is able to cogently present positions, including accurately citing to legal authority. See, e.g., doc. 13 at 1. There is no indication, therefore, that Jones “disability, ” whatever it may be, prevents him from presenting his claims. 3
The Court also notes that the United States District Court for the Middle District of Georgia has also recognized Jones pleadings do not present any indication of disability mandating appointed counsel. See Jones v. Unknown Defendant, CV118-017, doc. 12 at 4-5 (M.D. Ga. Mar. 5, 2018).
II. Access to Legal Materials
Jones has also filed a motion “to give [him] access to Jenkins Correctional Center's law library . . . .” Doc. 13. Such an Order, at this stage in the case, would come in the form of a preliminary injunction or temporary restraining order. See, e.g., Fed. R. Civ. P. 65. Preliminary injunctions cannot issue without notice to the opposing party. Fed.R.Civ.P. 65(a)(1). Temporary restraining orders may, however, issue without notice. Fed.R.Civ.P. 65(b)(1). However, “[b]oth temporary restraining orders and preliminary injunctions are extraordinary remedies . . ., ” which the Court has discretion to grant or deny. See, e.g., Faller v. Pelosi, 2020 WL 7330532, at *1 (S.D. Ga. Oct. 14, 2020). Neither may be granted unless the party seeking them “clearly establishes the burden of persuasion as to each of the four prerequisites[:]” (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of relief would serve the public interest. Id. (citations omitted). 4
Even assuming that Jones had referenced any of the elements required for a temporary restraining order, which he has not, what he has presented does not indicate a likelihood of success on the merits of his claim. The right of access to the courts encompasses “the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.” Lewis v. Casey, 518 U.S. 343, 356 (1996). However, this right does not automatically translate into a right to a law library or other forms of legal assistance. Id. at 350 (“Bounds established no such right [to a law library or to legal assistance].”). There is no requirement that states enable a prisoner to “litigate effectively” once in court. Id. at 354. Jones' Motion does not allege that he is denied access entirely. See doc. 13 at 1. Moreover, the Motion itself includes specific citations to legal authority. Id. (citing “Bass v. Parrin, 170 F.3d 1312, [illegible number] (11th Cir. 1999), Gonzalez v. Monty, 89 F.Supp.2d 1347, [13]55 (S.D. Fla. 2000).”). Finally, his other pleadings also include extensive citation. See, e.g., doc. 32 at 1. Given the strong implication, then, that Jones has some access to legal research materials, his motion, is DENIED. Doc. 13. 5
In another Motion, Jones requests that the Court provide him with copies of legal materials. See doc. 14 (requesting “copies of all U.S.C. § 18: 19: 28: and 42 Constitutional Laws and Local Rules . . .”). The Court is aware of no authority that it may provide a litigant with legal materials, to say nothing of when such provision is appropriate. See, e.g., Butler v. Broward Cnty. Cent. Examining Bd., 367 Fed.Appx. 991, 992 (11th Cir. 2010) (“Courts are not allowed to act as de facto counsel . . . .”). Cf. Jackson v. Fla. Dept. of Fin. Servs., 479 Fed.Appx. 289, 292-93 (11th Cir. 2012) (prisoner proceeding in forma pauperis was not entitled to free copies of court documents, including copies of his own pleadings). In the absence of any supporting authority for Jones' request that the Court provide him with legal materials, his motion is DENIED. Doc. 14. See, e.g., S.D. Ga. L. Civ. R. 7.1(b).
III. Screening
The Court is required to screen complaints filed by prisoners. 28 U.S.C. § 1915A(a). It applies Federal Rule of Civil Procedure 12(b)(6) standards to conduct that screening. Leal v. Ga. Dep't of Corr., 254 F.3d 1276, 1278-79 (11th Cir. 2001). In doing so, allegations in plaintiff's Complaint are taken as true and construed in the light most favorable to 6 him. Bumpus v. Watts, 448 Fed.Appx. 3, 4 n.1 (11th Cir. 2011). Moreover, pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and are liberally construed. See Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011). Conclusory allegations alone, however, are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (discussing a Rule 12(b)(6) dismissal).
To state a claim upon which relief can be granted, the allegations in the complaint must “state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. While Rule 8(a) of the Federal Rules of Civil Procedure does not require detailed factual allegations, “it demands more than an unadorned, the defendant unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A complaint is insufficient if it “offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action, '” or if it “tenders ‘naked assertions' devoid of ‘further 7 factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 555, 557). In short, the complaint must provide a “‘plain statement' possess[ing] enough heft to ‘sho[w] that the pleader is entitled to relief.'” Twombly, 550 U.S. at 557 (quoting Fed.R.Civ.P. 8(a)(2)).
Jones' allegations are far too vague to state a claim upon which relief can be granted. His Amended Complaint alleges that his claims occurred in “all 15 state and private prisons diagnostic classification center.” Doc. 24 at 6. He alleges that his claims occurred between either June 22, 1992 or May 20, 1993 and April 16, 2021. Id. Where the form requires that he provide “the facts underlying [his] claim(s), ” he states, in unedited form:
On 5-15-1992, I was informed by Ms. Hester (DFACS) staff that a sex abuse allegation was/had been alleged against me that I was to meet with her and Sgt. Det. Wallace Brown. I did. After said meeting over a month later on 6-22-1992 I was arrested on an invalid warrant. On 7-1-1992 I was assaulted beaten injured denied proper medical, mental health and family and legal help. While force to sleep on floors in county jails and Ga. Diag.8
Classification Center. Got infected lungs near death, over medicated, improper diagnosis prognosis.Id. at 7. To the extent that those allegations implicate any claims, it is clear that they are untimely.
The Court has reviewed all of Jones filings in this case and is unable to discern any allegations identifying a specific claim against a specific defendant. The allegations quoted above are consistent with Jones' vague assertions of procedural problems in his criminal prosecution in the 1990's and allegations of mistreatment while incarcerated. The only defendants identified include judges, both federal and state, three former Governors of Georgia, various state correctional agencies, several medical practices, and several law enforcement officers. See doc. 24 at 2-5. None of the allegations quoted above even hint at conduct by any of those defendants that Jones contends entitles him to relief. It is clear that some of those defendants may be immune, see, e.g., McBrearty v. Koji, 348 Fed.Appx. 437, 439 (11th Cir. 2009) (“Judges are entitled to absolute judicial immunity from damages under section 1983 from those acts taken while they are acting in their judicial capacity . . .”), some are not entities subject to suit, see Dixon v. State Bd. of Pardons & Paroles, Ga., 2015 WL 2408075, at *2 (N.D.Ga. May 20, 2015) (Georgia Board of Pardons and Paroles is not a “person” subject to suit under § 1983), and many might be immune under the Eleventh Amendment, see, e.g., McCall v. Dept. of Human Resources, 176 F.Supp.2d 1355, 1361-62 (M.D. Ga. 2001) (finding claim against Georgia Department of Human Resources barred by the State's Eleventh Amendment immunity). The lack of any specific allegations makes any definitive determination of the viability of particular claims impossible.
Section 1983 claims are subject to the statute of limitations applicable to personal-injury torts under state law. Wallace v. Kato, 549 U.S. 384, 387 (2007) (internal citation omitted). Under Georgia law, the statute of limitations for such claims is two years. O.C.G.A. § 9-3-33; see Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir. 1986). Generally, the statute of limitations for § 1983 claims begins to run when facts 9 supporting the cause of action are or should be reasonably apparent to the plaintiff. Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003) (per curiam). To the extent that Jones' allegations are discernable at all, the conduct he alleges occurred some thirty years ago. Without a more detailed presentation of the specific claims he asserts, the Court cannot say definitively that those claims did not accrue within the two-year period, but it appears unlikely.
Despite the Court's skepticism, a pro se plaintiff is entitled to at least one opportunity to amend potentially viable claims. Jenkins v. Walker, 620 Fed.Appx. 709, 711, (11th Cir. 2015) (“When a more carefully drafted complaint might state a claim, a district court should give a pro se plaintiff at least one chance to amend the complaint before the court dismisses the action.”). Although Jones has amended once, the Court will afford him one final opportunity to amend in light of the discussion above. Jones is DIRECTED to file his Second Amended Complaint within twenty-one days. The Clerk is DIRECTED to include a blank form Pro SE 14 (Complaint for Violation of Civil Rights (Prisoner)) for Jones convenience. Failure to comply with this Order may result in dismissal of this case. See Fed. R. Civ. P. 41(b). 10
IV. Conclusion
In summary, Jones' motions seeking appointment of counsel are all DENIED. Docs. 22, 28, 29 & 32. His motion for an Order to provide him additional access to legal research materials, construed as a motion for a temporary restraining order, is DENIED. Doc. 13. His request that the Court provide him with copies of legal materials is also DENIED. Doc. 14. Because his Amended Complaint fails to state a claim upon which relief can be granted, he is DIRECTED to submit a Second Amended Complaint within twenty-one days. As the operative pleading in this case fails to state a viable claim, and no defendant has yet been served, Jones' “Emergency Motion to Settle this Consolidated Massive Rare Case” is DISMISSED as moot. Doc. 25.
SO ORDERED 11