Opinion
5:03-CV-113-1 (DF)
January 26, 2004
ORDER
The Plaintiff filed this action seeking to enjoin Defendant from continuing allegedly fraudulent business operations. Currently before the Court are Defendant's Motion for Appointment of Counsel (tab #25) and a Motion to Proceed In Forma Pauperis (tab #26). Also pending before the Court are Plaintiff's Motion for Summary Judgement (tab #32-1) and for a Permanent Injunction (tab #32-2). The Court will address each motion in turn.
I. MOTION FOR APPOINTMENT OF COUNSEL
"The appointment of counsel in a civil case is a privilege and not a constitutional right." Mekdeci v. Merrell Nat'l Lab. , 711 F.2d 1510,1522n.19(11th Cir. 1983); see also Poole v. Lambert , 819 F.2d 1025 (11th Cir. 1987). This privilege 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." Dean v. Barber , 951 F.2d 1210,1216 (11th Cir. 1992). With regard to a request for court appointed counsel in a civil case, "the district court has broad discretion in making this decision." Bass v. Perrin , 170 F.3d 1312,1320(11th Cir. 1999); see also 28 U.S.CA § 1915(e)(1). A key consideration for the district court is "whether the pro se litigant needs help in presenting the essential merits of his or her position to the court" and "where the facts and issues are simple, he or she usually will not need such help." Kilgo v. Ricks , 983 F.2d 189, 193 (11th Cir. 1993). In deciding the simplicity of the facts and issues, it is important to note whether the "core facts of the case are in dispute" and whether the "legal claims are straightforward". Bass , 170 F.3d at 1320. Even though "litigants undoubtedly would [be] helped by the assistance of a lawyer," if their case is not "unusual" or the circumstances "exceptional" then the district court does not abuse its discretion in denying court appointed counsel. Id.
In the instant case, Defendant has not demonstrated that the facts are in dispute or that the legal claims are less than straightforward. Here, while Defendant claims he cannot make a complete response because his files have been confiscated by the Government, the essential, core facts of the case have never been disputed. That is, that Defendant prepared tax returns with a special credit for African-Americans, which he referred to as "black heritage taxes" or "forty acres and a mule," and that no such credit or refund exists. Furthermore, while the Internal Revenue Code ("IRC") is large and can be overwhelming to the untrained practitioner, Defendant held himself and his business out to be professional tax preparers, and in so doing appeared to be adept at dealing with the IRC. Also, the Eleventh Circuit has emphasized that when the legal issues are straightforward the need for court appointed counsel lessens. The issue in this case is straightforward, in that the Government asserts Defendant took a tax credit for himself and others that does not exist. As such, it would seem to the Court that whether the credit is legitimate and exists is straightforward as it is either true or false, leaving little room for interpretation. Therefore, the Defendant has not shown the existence of exceptional circumstances worthy of court appointed counsel.
II. MOTION TO PROCEED IN FORMA PAUPERIS
"Reasonable access to the courts is provided to indigent claimants by the in forma pauperis statute, which allows commencement of suits without payment of fees and court costs by a person who makes an affidavit that he is unable to pay the costs." Moon v. Newsome , 863 F.2d 835, 837 (11th Cir. 1989). In forma pauperis proceedings are governed by 28 U.S.C.A. § 1915. See Hughes v. Lott , 350 F.3d 1157,1159-60 (11th Cir. 2003). "All persons, regardless of wealth, are entitled to reasonable access to the courts. Put differently, a nonfrivolous, nonmalicious complaint may not be dismissed or prevented from being filed solely because of the Plaintiff's inability to pay court costs. See generally Procup v. Strickland , 792 F.2d 1069 (11th Cir. 1986)." Moon , 863 F.2d at 837. Here the Defendant has filed this motion, and it appears inapplicable as the Defendant is not called upon to pay the filing fee associated with this action. Defendant did not, of his own choosing, seek access to this Court nor has he filed any complaint or been asked to pay court costs, such that the protections afforded by in forma pauperis are not invoked.
III. MOTION FOR SUMMARY JUDGEMENT, PERMANENT INJUNCTION
Because Defendant is proceeding pro se and has not filed a response to Plaintiff's motion, the Court finds it necessary to advise him of his right to respond to the motion and of the consequences for failing to respond. Under the procedures and policies of the Court, motions for summary judgment are normally decided on the briefs. In addition to the parties' briefs, the Court will consider the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits submitted by the parties in deciding whether summary judgment is appropriate under Rule 56.
Rule 56(c) of the Federal Rules of Civil Procedure provides as follows:
The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
Fed.R.Civ.P. 56(c). In addition, the Court's Local Rules provide as follows:
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue of material fact to be tried, including specific reference to those parts of the pleadings, depositions, answers to interrogatories, admissions on file and affidavits which support such contentions.
All material facts set forth in the statement served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
Failure to comply with this rule by the moving party may result in denial of the motion.
M.D. Ga. R. Civ. P. 56.
Summary judgment may be granted only if there is no genuine issue as to any material fact and if Defendants are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). When reviewing a motion for summary judgment, the Court must view the evidence and all justifiable inferences in the light most favorable to Plaintiff, but the Court may not make credibility determinations or weigh the evidence. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255(1986).
Plaintiff "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact" and that entitle it to judgment as a matter of law. Celotex Corp. , 477 U.S. at 323 (internal quotation marks omitted). If Plaintiff discharges this burden, the burden then shifts to Defendant to go beyond the pleadings and present specific evidence (in the form of pleadings, depositions, answers to interrogatories, admissions on file, or affidavits) showing that there is a genuine issue of material fact or that Plaintiff is not entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(e); see also Celotex Corp. , 477 U.S. at 324-26. This evidence must consist of more than mere conclusory allegations or legal conclusions. See Avirgan v. Hull , 932 F.2d 1572, 1577 (11th Cir. 1991).
Defendant is specifically advised that he has the right to file affidavits or other material in opposition to Plaintiff's motion. If Defendant fails to do so, a final judgment may be entered against him if otherwise appropriate under Rule 56. Defendant is further advised that failure to respond to the statements set forth in Plaintiff's affidavits or other sworn pleadings may result in those statements being accepted as true.
If Defendant chooses not to file a response, Plaintiff's motion will not necessarily be granted; however, if Plaintiff meets its burden and Defendant has not responded by showing that summary judgment is inappropriate, the Court must grant the motion. If Plaintiff's motion is granted, judgment will be entered in it[s] favor and the case will be closed; there would be no trial or any other proceedings.
Accordingly, Defendant is advised that the safest course of action is to file a response to Plaintiff's motion in accordance with Rule 56 of the Federal Rules of Civil Procedure and the Court's Local Rules, a copy of which may be obtained from the Clerk's Office in Macon. If Defendant chooses to respond, the deadline for him to file a response brief and any supporting affidavits or other material is Wednesday, February 11, 2004. Plaintiff will then have until Wednesday, February 25, 2004, to file a reply brief.
IV. CONCLUSION
As Defendant has not demonstrated the existence of exceptional circumstances, Defendant's Motion for Court Appointed Counsel is DENIED. Additionally, Defendant's Motion to Proceed In Forma Pauperis is DENIED as MOOT. Lastly, because Defendant is proceeding pro se and has not filed a response to Plaintiff's Motion for Summary Judgement and a Permanent Injunction, Defendant will be given an additional 20 days to respond to the motion for summary judgement and permanent injunction and Plaintiff 10 days to reply thereto.
SO ORDERED.