Opinion
5:23-cv-00112-MTT-MSH
06-28-2023
ALVIN G. STANLEY, Plaintiff, v. COMMISSIONER TIMOTHY C. WARD, et al., Defendant.
ORDER & RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Plaintiff Alvin G. Stanley, a prisoner in Dooly State Prison in Unadilla, Georgia, filed a handwritten document, which was docketed in this Court as a complaint under 42 U.S.C. § 1983. Compl., ECF No. 1. Because Plaintiff did not file his complaint on the required § 1983 form designed for use by prisoner litigants, he was ordered to do so. Order, ECF No. 10. Plaintiff was also ordered to file a proper and complete motion for leave to proceed in forma pauperis. Id. In that same order, Plaintiff's motions to appoint counsel and an investigator (ECF Nos. 3, 7, & 9) were denied, and it was recommended that Plaintiff's motion for a temporary restraining order or preliminary injunction (ECF Nos. 4 & 6) be denied. See id.
Plaintiff has now filed a recast complaint (ECF No. 12) and motion to proceed in forma pauperis (ECF No. 13), along with a motion for an extension of time to file his motion to proceed in forma pauperis (ECF No. 14), two new motions to appoint counsel (ECF Nos. 15 & 19), a new motion for a temporary restraining order or preliminary injunction (ECF No. 16), and a motion for “emergency assistance” (ECF No. 17). On review of these filings, Plaintiff's motion for an extension of time to file his motion for leave to proceed in forma pauperis is GRANTED in part and DENIED in part, as set forth below. Additionally, Plaintiff's motion to proceed in forma pauperis is GRANTED, and Plaintiff is ORDERED to pay an initial partial filing fee of $14.16. Next, Plaintiff's motions for appointment of counsel and emergency assistance are DENIED. Finally, it is RECOMMENDED that Plaintiff's motion for a preliminary injunction be DENIED.
MOTION FOR EXTENSION OF TIME
As an initial matter, Plaintiff has filed a motion for an extension of time to file the motion for leave to proceed in forma pauperis that he was previously ordered to file. Mot. for Ext. of Time, ECF No. 14. In this motion, Plaintiff asserts that he did not have enough time to submit and receive back his account statement. Id. Plaintiff also asks that the court “waive fees for defendant to pay.” Id. It is unclear what Plaintiff is seeking by this request. Regardless, to the extent that Plaintiff seeks an extension of time, his motion is GRANTED, and Plaintiff's motion to proceed in forma pauperis is considered herein. Insofar as he may be seeking other relief, such as a waiver of fees, the motion is DENIED.
MOTION TO PROCEED IN FORMA PAUPERIS
As noted above, Plaintiff has now filed his motion to proceed in forma pauperis. Mot. for Leave to Proceed In Forma Pauperis, ECF No. 13. The district courts may authorize the commencement of a civil action without prepayment of the normally required filing fee if the plaintiff shows that he is indigent and financially unable to pay the filing fee. See 28 U.S.C. §1915(b). A prisoner seeking to proceed in forma pauperis 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.” Id. As it appears from Plaintiff's documentation that Plaintiff is unable to prepay the entire cost of commencing this action, his application to proceed in forma pauperis is hereby GRANTED.
A. Initial Partial Filing Fee
Even if a prisoner is allowed to proceed in forma pauperis, he must nevertheless pay the full amount of the $350.00 filing fee in installments based on funds in the prisoner's account. When a prisoner has funds in his account, he must pay an initial partial filing fee of twenty percent of the greater of (1) the average monthly deposits to the prisoner's account, or (2) the average monthly balance in the prisoner's account for the six-month period immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). According to Plaintiff's certified account statement, the average monthly deposits to Plaintiff's account during the relevant time period equaled $70.83. Twenty percent of $70.83 is $14.16. Accordingly, it is hereby ORDERED that Plaintiff pay an initial partial filing fee of $14.16.
Plaintiff's recast complaint will proceed for the preliminary review once Plaintiff has paid the initial partial filing fee.
B. Remainder of the Filing Fee
Additionally, Plaintiff is obligated to pay the remainder of the $350.00 filing fee, in installments, as provided in 28 U.S.C. § 1915(b)(1) and explained below. The CLERK shall therefore forward a copy of this ORDER to the business manager of the facility in which Plaintiff is detained 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 Plaintiff's complaint (or any part thereof) is dismissed prior to service.
1. Directions to Plaintiff's Custodian
Because Plaintiff has now been granted leave to proceed IFP, 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 the 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 collection of the full filing fee.
2. Plaintiff's Obligations Upon Release
An individual's release from prison does not excuse his prior noncompliance with the provisions of the PLRA. Thus, 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 those installments justified by the income to his prisoner trust account while he was still incarcerated. The Court hereby authorizes collection from Plaintiff of any balance due on these payments by any means permitted by law in the event Plaintiff is released from custody and fails to remit such payments. Plaintiff's complaint may be dismissed if he is able to make payments but fails to do so or if he otherwise fails to comply with the provisions of the PLRA.
MOTIONS TO APPOINT COUNSEL
As mentioned above, Plaintiff previously filed two motions for the appointment of counsel, which were denied. Mot. to Appoint Counsel, ECF Nos. 3 & 7; Order 4-5, ECF No. 10. In the order denying counsel, Plaintiff was advised that appointment of counsel is not a constitutional right but a privilege justified only by exceptional circumstances. See Order 5, ECF No. 10 (citing Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1986)). Moreover, Plaintiff was informed that, if it becomes apparent that legal assistance is required to avoid prejudice to Plaintiff's rights, the Court will, on its own motion, consider assisting him in securing legal counsel at that time. Id. Thus, Plaintiff was told that he need not file any further motions for the appointment of counsel. Id. Despite this clear direction, Plaintiff has filed two new motions to appoint counsel. Mot. to Appoint Counsel, ECF Nos. 15 & 19.
In these new motions, Plaintiff reiterates and expands upon arguments he previously made in support of his motion for appointment of counsel, including that he is in segregation, he has had issues with mail causing him to miss deadlines, and he has serious medical problems. See Mot. to Appoint Counsel, ECF No. 15 & 19. To the extent that these motions may be considered motions for reconsideration of the prior order denying counsel, motions for reconsideration are not to “be filed as a matter of routine practice.” M.D. Ga. Local R. 7.6. Instead, reconsideration is only appropriate when “(1) there has been an intervening change in the law; (2) new and previously unavailable evidence has been discovered through the exercise of due diligence; or (3) the court made a clear error of law.” Fla. Found. Seed Producers, Inc. v. Ga. Farms Servs., Inc., 977 F.Supp.2d 1336 (M.D. Ga. 2013).
Plaintiff has not met the standard of showing that reconsideration is appropriate in this case. Even if these motions were considered as independent motions for the appointment of counsel, Plaintiff has not shown that appointment of counsel is now warranted. Therefore, Plaintiff's new motions for the appointment of counsel are also DENIED.
MOTION FOR EMERGENCY ASSISTANCE
Finally, Plaintiff has filed a motion for emergency assistance. Mot. for Emergency Assistance, ECF No. 17. This motion includes five pages of rambling argument and allegations, in which it is not entirely clear what relief Plaintiff is seeking. See generally id. In the beginning of the motion, Plaintiff asks that clerks be required to bring cases directly to the judges. Id. at 1. Plaintiff goes on to reiterate claims made elsewhere in this case that he has been subject to ongoing issues with his legal mail, that the mail issues have left him unaware of things that are happening in his cases, and that he has encountered safety issues in the prison. Id. at 1-5. Plaintiff also asks the Court to contact his father to confirm Plaintiff's credibility, and Plaintiff discusses his plans for when he is released from prison. Id. at 2-4.
Plaintiff has filed this same motion in his other pending cases. See Stanley v. Whitentin, Case No. 5:22-cv-00239-TES-CHW; Stanley v. Ward, Case No. 5:22-cv-00413-CAR-CHW. The motion has been denied in both cases.
The docket shows that Plaintiff has received the orders from the Court in this case and has had an opportunity to respond to them. Although it is unclear what relief Plaintiff's motion seeks in this case, it does not appear that any intervention by the Court is warranted. Therefore, Plaintiff's motion for emergency assistance is DENIED.
MOTION FOR PRELIMINARY INJUNCTION
Plaintiff has filed a proposed order to show cause, which is construed as another motion for a preliminary injunction. As with the motions to appoint counsel, Plaintiff previously filed motions for preliminary injunctive relief, and it has been recommended that those motions be denied. In the new motion, Plaintiff seeks orders requiring Defendant Commissioner Timothy C. Ward to send Plaintiff to the hospital, have Plaintiff transferred to a halfway house, take Plaintiff's protective custody requests seriously, order that Plaintiff's mail not be tampered with, require officers to serve food trays rather than allowing inmates to serve them, and fix understaffing issues. Mot. for Order to Show Cause, ECF No. 16.
As was previously explained to Plaintiff, a temporary restraining order (“TRO”) or preliminary injunction is a drastic remedy used primarily to preserve the status quo rather than to grant most or all of the substantive relief sought in the complaint. See, e.g., Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982). Factors a movant must show to be entitled to a TRO include: “(1) a substantial likelihood of ultimate success on the merits; (2) the TRO is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm the TRO would inflict on the non-movant; and (4) the TRO would serve the public interest.” Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (per curiam).
The standard for obtaining a TRO is the same as the standard for obtaining a preliminary injunction. See Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001) (per curiam); Windsor v. United States, 379 Fed.Appx. 912, 916-17 (11th Cir. 2010) (per curiam).
As before, at this stage, Plaintiff has not sufficiently shown a “substantial likelihood of success on the merits,” as he has yet to identify any objective evidence to support his claims in this action. Thus, it is still unclear if Plaintiff will be able to show that his rights have been violated in any way. In this regard, Plaintiff essentially seeks to have the Court provide him with substantive relief on most or all of his claims without the benefit of a full picture of the circumstances surrounding Plaintiff's situation. The Court cannot determine based solely on Plaintiff's unsupported allegations that he has a substantial likelihood of success on the merits.
Plaintiff has, for the same reason, failed to allege facts showing that his threatened injury outweighs any harm to defendants or that an injunction would not be adverse to the public interest. Again, Plaintiff asks the Court to enter orders granting him fairly extensive relief without a full picture of the situation. Plaintiff's motion, therefore, falls short of meeting the prerequisites for issuance of a temporary restraining order or preliminary injunction and it is RECOMMENDED that the motion (ECF No. 16) be
DENIED.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this order and recommendation with the United States District Judge to whom this case is assigned WITHIN FOURTEEN (14) DAYS after being served with a copy of this order and recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
CONCLUSION
Therefore, as discussed in detail above, Plaintiff's motion for an extension of time to file his motion for leave to proceed in forma pauperis (ECF No. 14) is GRANTED in part and DENIED in part. Additionally, Plaintiff's motion to proceed in forma pauperis (ECF NO. 13) is GRANTED, and Plaintiff is ORDERED to pay an initial partial filing fee of $14.16. Plaintiff shall have FOURTEEN (14) DAYS from the date of this order to file his initial partial filing fee. Next, Plaintiff's motions for appointment of counsel (ECF Nos. 15 & 19) and for emergency assistance (ECF No. 17) are DENIED. Finally, it is RECOMMENDED that Plaintiff's motion for a preliminary injunction (ECF No. 16) be DENIED.
SO ORDERED and RECOMMENDED.