United States District Court, W.D. Tennessee, Eastern Division
BARRY D. MATHIAS, ET AL., Plaintiffs,
PAUL THOMAS, ET AL., Defendants.
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (ECF
NO. 9), GRANTING MOTION TO AMEND (ECF NO. 12), SEVERING CASES
AND DIRECTING PLAINTIFF MATHIAS TO FILE A NON-PRISONER IN
FORMA PAUPERIS AFFIDAVIT OR PAY THE $400 CIVIL FILING
D. TODD UNITED STATES DISTRICT JUDGE.
February 18, 2016, Plaintiffs Barry D. Mathias, Timothy G.
Coffman, Richard L. Casey, Jr. and James A. Williams filed a
pro se complaint pursuant to 42 U.S.C. § 1983.
(ECF No. 1.) At the time, all four were incarcerated at the
Gibson County Correctional Complex (“GCCC”) in
Trenton, Tennessee. Each Plaintiff signed the complaint, and
each submitted an two-page prisoner in forma
pauperis application. (ECF Nos. 2, 3, 4, & 5.) An
amended complaint was filed on July 5, 2016, which is also
signed by all four Plaintiffs. (ECF No. 8.) Plaintiffs also
filed a motion for appointment of counsel on July 13, 2016.
(ECF No. 9.) Plaintiff Matthias filed a letter on July 28,
2016, requesting to correct the name of one of the named
defendants, which was docketed as a motion to amend. (ECF No.
the Plaintiffs are currently incarcerated at the GCCC.
Plaintiff Coffman notified the Clerk that he is presently
incarcerated at the Carroll County Jail in Huntingdon,
Tennessee. (ECF No. 15.) On November 3, 2016, Plaintiff
Williams submitted a change of address indicating that he has
been released and resides in Trenton, Tennessee. (ECF No.
19.) Plaintiff Matthias also was released and resides in
Milan, Tennessee. (ECF No. 22.) On March 13, 2017, the Clerk
docketed a notice from Plaintiff Casey stating he had been
transferred to the U.S. Penitentiary Coleman I in
Sumterville, Florida. (ECF No. 25.)
to 28 U.S.C. § 1915(e)(1), “[t]he court may
request an attorney to represent any person unable to afford
counsel.” However, “[t]he appointment of counsel
in a civil proceeding is not a constitutional right.”
Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir.
2003); see also Shepherd v. Wellman, 313 F.3d 963,
970 (6th Cir. 2002) (“[T]he plaintiffs were not
entitled to have counsel appointed because this is a civil
lawsuit.”); Lavado v. Keohane, 992 F.2d 601,
605-06 (6th Cir. 1993) (no constitutional right to counsel in
a civil case); Farmer v. Haas, 990 F.2d 319, 323
(7th Cir. 1993) (“There is no constitutional or . . .
statutory right to counsel in federal civil cases . . .
.”). Appointment of counsel is “a privilege that
is justified only by exceptional circumstances.”
Lavado, 992 F.2d at 606 (internal quotation marks
and citation omitted). “In determining whether
‘exceptional circumstances' exist, courts have
examined the type of case and the abilities of the plaintiff
to represent himself. This generally involves a determination
of the complexity of the factual and legal issues
involved.” Id. at 606 (internal quotation
marks and citations omitted). Appointment of counsel is not
appropriate when a pro se litigant's claims are
frivolous or when his chances of success are extremely slim.
Id. (citing Mars v. Hanberry, 752 F.2d 254,
256 (6th Cir. 1985)); see also Cleary v. Mukasey,
307 F.App'x 963, 965 (6th Cir. 2009) (same).
stage of the proceedings, no Plaintiff has satisfied his
burden of demonstrating that the Court should exercise its
discretion to appoint counsel. Nothing in the motion serves
to distinguish this case from the many other cases filed by
pro se litigants who are not trained attorneys and
who may have limited access to legal materials. Therefore,
the motion for appointment of counsel is DENIED.
it is not practicable for the four Plaintiffs to litigate
their claims in a single action, especially since they
currently are incarcerated in separate prisons or have been
released from prison. Therefore, the Court hereby SEVERS the
claims of Plaintiffs Coffman, Casey and Williams. The Clerk
is DIRECTED to open new civil actions for Plaintiffs Coffman,
Casey, and Williams and to docket in each case a copy of the
complaint and the applicable motion for leave to proceed
in forma pauperis, as well as any other applicable
documents for that Plaintiff. This case will proceed with
Barry D. Mathias as the sole Plaintiff.
the Prison Litigation Reform Act, 28 U.S.C. § 1915(b), a
prisoner bringing a civil action must pay the filing fee
required by 28 U.S.C. § 1914(a). The statute merely
provides the prisoner the opportunity to make a
“downpayment” of a partial filing fee and pay the
remainder in installments. However, in this case, the filing
fee was not paid prior to Plaintiff's release. Under
these circumstances, the Sixth Circuit has held that,
“[a]fter release, the obligation to pay the remainder
of the fees is to be determined solely on the question of
whether the released individual qualifies for pauper
status.” McGore v. Wrigglesworth, 114 F.3d
601, 613 (6th Cir. 1997), partially overruled on other
grounds by LaFountain v. Harry, 716 F.3d 944, 951 (6th
Cir. 2013). Therefore, Plaintiff Mathias is ORDERED to submit
either the five-page non-prisoner in forma
pauperis affidavit or the entire $400 filing
within 30 days after the date of this order. The Clerk shall
mail Plaintiff Mathias a copy of the non-prisoner in
forma pauperis affidavit form along with this order.
to comply with this order in a timely manner will result in
the dismissal of this action without further notice, pursuant
to Federal Rule of Civil Procedure 41(b), for failure to
 The motion to amend requests that
Defendant Tim Witherspoon's name be corrected to Tom
Witherspoon. That motion is GRANTED, and the Clerk is
directed to modify the docket to reflect the name
 Twenty-eight U.S.C. § 1914(a)
requires a civil filing fee of $350. In addition, §
1914(b) requires the clerk to “collect from the parties
such additional fees . . . as are prescribed by the Judicial
Conference of the United States.” The Judicial
Conference has prescribed an additional administrative fee of
$50 for filing any civil case, except for cases seeking
habeas corpus and cases in which the plaintiff is granted
leave to proceed in forma pauperis under 28 U.S.C.
§ 1915. Therefore, if Plaintiff submits a non-prisoner