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Johnson v. Abangan

United States District Court, S.D. Mississippi, Northern Division

October 25, 2018

ROGER C. JOHNSON #59980 PLAINTIFF
v.
DR. ABANGAN, ET AL. DEFENDANTS

          ORDER

          DANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff Roger Johnson filed this action in February 2017, alleging that he was not receiving adequate medical care at East Mississippi Correctional Facility (“EMCF”). Following dismissal, the action is once again before the Court for consideration of Johnson's in forma pauperis status on appeal, despite his status as a three-strikes litigant.

         I. Facts and Procedural History

         On March 15, 2018, the Court adopted the Report and Recommendation of United States Magistrate Judge F. Keith Ball, revoked Johnson's in forma pauperis status, and gave him sixty days to pay the filing fee. Order [35]. Specifically, the Court found that Johnson's allegations were better characterized as complaints about the frequency and timeliness of his medical care at EMCF and did not suggest he was in imminent danger at the time he filed his Complaint. Id. at 2-4.

         Rather than pay the filing fee, Johnson filed a motion to reconsider. On June 12, 2018, the Court denied the motion for reconsideration, again allowing Johnson sixty days to pay the filing fee. Order [39]. On July 2, 2018, Johnson filed a notice of appeal [40] and a document [41] titled “Reason In Forma Pauperis Should be Granted, ” stating he was entitled to pauper status because he is in imminent danger.

         In response, the Court entered an Order directing Johnson to file a completed application to proceed in forma pauperis on appeal by August 6, 2018, and attached a copy of the required application. Order [43]. Johnson filed a “Declaration in Support of Request for Leave to Proceed In Forma Pauperis” [44], a “Brief in Support . . .” [45], and a “Motion for Jury Trial” [46]-none of which contained the completed in forma pauperis application. On August 10, 2018, the Court denied Johnson in forma pauperis status on appeal, citing his failure to comply with the prior Order [43]. Order [47]. Since then, Johnson has filed four motions--an “Amendments to the Motion for the Appointment of Counsel” [48], a “Motion for Reconsideration to Order Document [47]” [49], an “Amended Motion for Reconsideration to Order Document [47]” [51], and a duplicate “Amended Motion for Reconsideration to Order Document [47]” [52] (with exhibits).

         II. Analysis

         A. Appointment of Counsel

         Looking first at the “Amendments to the Motion for the Appointment of Counsel” [48], Johnson claims that he submitted a motion for appointment of counsel to the Court on August 1, 2018, but no such filing can be found on the docket. He presents the Court with four pages of changes to be made to that filing. Mot. [48] at 1-5. While the actual motion to appoint counsel was not received by the Court as a separate filing, a copy of that motion is included as an exhibit to Johnson's “Amended Motion for Reconsideration to Order Document [47]”. Mot. [52] at 16 (“Motion for the Appointment of Counsel”).

         A district court should consider four factors in deciding a motion to appoint counsel: (1) the type and complexity of the case; (2) whether the plaintiff is capable of adequately presenting his case; (3) whether the plaintiff is in a position to adequately investigate the case; and (4) whether “the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross examination.” Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).

         First, Johnson's claim of inadequate medical attention is not particularly novel or complex. See Jackson v. Dall. Police Dept., 811 F.2d 260, 262 (5th Cir. 1986) (“The section 1983 action that Jackson has filed involves issues that have been briefed and analyzed in numerous cases.”); Feist v. Jefferson Cty. Comm'rs Court, 778 F.2d 250, 253 (5th Cir. 1985) (“Feist's action was not complex as it relied solely on factual matters that Feist was able to investigate and present to the court on his own.”). As to factors two and three, Johnson has demonstrated that he is capable of investigating and presenting his case, as evidenced by his approximately 26 filings, some of which include exhibits in support [33, 52]. See Jackson, 811 F.2d at 262 (“[T]he record demonstrates that Jackson has done a very credible job in presenting motions and in filing supporting papers on behalf of his case. Jackson has filed ten different items ranging from his original complaint to the notice of appeal that brought this matter before this court.”). And lastly, the Court “cannot say at this point whether or not the evidence will consist in large part of conflicting testimony for which [Johnson] would require assistance of counsel.” Id.

         In sum, the Court has reviewed the motion and considered the applicable factors and finds that Johnson has not shown that appointment is warranted. See Butler v. Williams, 476 Fed.Appx. 300, 301 (5th Cir. 2012) (denying appointment of counsel in prisoner-civil-rights action where the plaintiff “failed to show that his case presents exceptional circumstances”); Ulmer, 691 F.2d at 212 (“A civil rights complainant has no right to the automatic appointment of counsel. The trial court is not required to appoint counsel for an indigent plaintiff asserting a claim under 42 U.S.C. § 1983 unless the case presents exceptional circumstances.” (citations omitted)). Johnson's motion [48], construed as a motion for appointment of counsel, is denied.

         B. In Forma Pauperis on Appeal

         In the remaining motions [49, 51, 52], Johnson asks the Court to reconsider its August 10, 2018 denial [47] of his application to proceed in forma pauperis [41] on appeal.[1] Johnson explains that he mailed his completed application to proceed on appeal in forma pauperis on August 1, 2018, but it was returned as undeliverable. Mot. [52] at 1. In support, he attaches a copy of his completed Motion to Proceed in Forma Pauperis, which he signed and dated on July 31, 2018.[2]Id. at 8 (“Motion to Proceed In Forma Pauperis”). Notably, however, the required Authorization Form filled out by the institution is signed and dated June 20, 2018, prior to the filing of his notice of appeal. Id. at 14. But Johnson represents that he “has not had any money in his inmate account for over 5 years and does not expect any income, so he substituted the form.” Mot. [49] at 2. The Court, in its discretion, finds that Johnson has substantially complied with its Order to submit a ...


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