[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14236 ELEVENTH CIRCUIT
MARCH 9, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 06-14066-CV-KMM
GLENN C. SMITH,
Plaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant,
SERGEANT C. THOMAS,
in his individual capacity,
A.C. WILLIAMS,
in his individual capacity,
OFFICER FULCHER,
OFFICER C. MARTENS, JR.,
OFFICER A. SCHULTHEISS,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 9, 2010)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Glenn C. Smith, a state prisoner, filed a pro se complaint against seven
defendants associated with the Martin Correctional Institution under 42 U.S.C. §
1983 and state tort laws. Smith alleged that correctional officers, in retaliation for
his filing of grievances, submitted false disciplinary reports and used excessive
force. After the district court granted, in part, the defendants’ motions to dismiss
and their motion for summary judgment, the case proceeded to trial against
Sergeant C. Thomas and A.C. Williams.1 The jury issued a verdict in the
defendants’ favor, and the district court denied Smith’s motion for a new trial. In
this pro se appeal, Smith contends that the district court abused its discretion by
denying his motions for appointment of counsel, for assistance in securing
evidence and witnesses, to continue the trial until he obtained additional evidence,
and for a new trial. Smith also contends that the district court’s injunctive order
1
Smith does not challenge the district court’s pretrial rulings disposing of certain
defendants and claims. Although we liberally construe pro se briefs, those issues have been
abandoned. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
2
prohibiting him from filing any new petitions in forma pauperis (IFP) violates his
due process and is not supported by the record. We affirm.
Smith first contends that the district court should have granted his motions
for appointment of counsel. The plaintiff in a civil case, however, has no
constitutional right to counsel. Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir.
1999). The decision to appoint counsel is within the district court’s discretion, id.
at 1319, and the court should appoint counsel only in 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). “The key is whether the pro se litigant needs help in presenting the
essential merits of his or her position to the court. 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). The district court acted within its discretion by refusing to
appoint counsel for Smith. The facts and issues in this case are simple, and Smith
has extensive litigation experience—he has filed over 130 previous actions in state
and federal courts. The court also noted that he was doing a “good job standing up
and talking on [his] feet” at the pretrial proceedings.
Smith also contends that the district court erred by denying his motion to
compel non-party discovery, by declining to issue subpoenas on his behalf, and by
3
refusing to issue a writ of habeas corpus ad testificandum. We review those
decisions only for an abuse of discretion. See Iraola & CIA, S.A v.
Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003) (discovery); United
States v. Lee, 68 F.3d 1267, 1272 (11th Cir. 1995) (subpoenas); United States v.
Wright, 63 F.3d 1067, 1070 (11th Cir. 1995) (habeas corpus ad testificandum).
Our review is highly deferential, and “we will not second-guess the district court’s
actions unless they reflect a clear error of judgment.” Holloman v. Mail-Well
Corp., 443 F.3d 832, 837 (11th Cir. 2006) (internal quotation omitted).
“Courts do and should show a leniency to pro se litigants not enjoyed by
those with the benefit of a legal education. Yet even in the case of pro se litigants
this leniency does not give a court license to serve as de facto counsel for a party,
or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR
Invs. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citation
and internal citations omitted). Once a pro se litigant is in court, “he is subject to
the relevant laws and rules of the court, including the Federal Rules of Civil
Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
The district court properly denied Smith’s motion to compel non-party
discovery because Smith did not submit proof of service to the district court. See
Fed.R.Civ.P. 45(b). In refusing to subpoena witnesses, the district court acted
4
within its discretion because Smith had not tendered the fees that must be paid
before service of a subpoena is complete. See Lloyd v. McKendree, 749 F.2d 705,
706–07 (11th Cir. 1985) (holding that 28 U.S.C. § 1915(c), which in 1996 was
redesignated as § 1915(d), does not abrogate the requirement that fees must be
tendered before service of the subpoena); Fed.R.Civ.P. 45(b)(1).
A prisoner’s presence at trial is secured by a writ of habeas corpus ad
testificandum, the grant or denial of which is “committed to the sound discretion of
the district court.” United States v. Rinchack, 820 F.2d 1557, 1567 (11th
Cir.1987); see Wright, 63 F.3d at 1070. “The discretionary grant of the writ of
habeas corpus ad testificandum is predicated on several factors, including, whether
the prisoner’s presence will substantially further the resolution of the case, the
security risks presented by the prisoner’s presence, and the expense of the
prisoner’s transportation and safekeeping.” Pollard v. White, 738 F.2d 1124, 1125
(11th Cir. 1984) (internal quotation marks omitted). Smith wanted two inmates to
testify at trial, but one of them could not be located by Smith or the district court.
Smith failed to state why the other inmate’s testimony would be important. He
also admitted at a calendar call that he did not pre-pay witness and mileage fees in
accordance with Rule 45(b)(1). Moreover, Smith filed his petitions only one week
before trial even though he had ample notice of the trial date. See Rinchack, 820
5
F.2d 1557 (“[A] district court may refuse to issue a writ of habeas corpus ad
testificandum solely on the grounds that the petition is untimely . . . if the
defendant had adequate notice of the trial date.”). We therefore conclude that the
district court did not abuse its discretion in refusing to issue a writ of habeas corpus
ad testificandum.
Smith argues that the district court erred by denying his motion for a
continuance, a ruling that we review only for an abuse of discretion. Quiet Tech.
DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1350–51 (11th Cir. 2003);
Hashwani v. Barbar, 822 F.2d 1038, 1040 (11th Cir. 1987) (“The denial of a
continuance is within the broad discretion of the district court and will not be
overturned unless arbitrary or unreasonable.”). When Smith requested a
continuance, the case had already been on the district court’s docket for two years.
Smith had received adequate time to prepare, and a continuance would have
inconvenienced the court and the defendants. The district court therefore did not
abuse its discretion in denying a continuance.
The district court’s denial of a motion for new trial is reviewed only for
abuse of discretion. Lipphardt v. Durango Steakhouse, 267 F.3d 1183, 1186 (11th
Cir. 2001); Rosenfield v. Wellington Leisure Prods., Inc., 827 F.2d 1493, 1498
(11th Cir.1987). The district court did not abuse its discretion because, as we
6
explained above, Smith was not entitled to appointed counsel, and he had sufficient
time to obtain counsel, evidence, and witnesses. Moreover, we will not speculate
as to potential errors at the trial because Smith has failed to provide this Court with
a complete trial transcript. See Coady v. D.A.N. Joint Venture III, L.P. (In re
Coady), 588 F.3d 1312, 1316 n.5 (11th Cir. 2009); Selman v. Cobb County Sch.
Dist., 449 F.3d 1320, 1333 (11th Cir. 2006).
Smith also contends that the district court erred by enjoining him from filing
future requests to proceed IFP because he was a “three striker” under 28 U.S.C.
1915(g). We review de novo the district court’s interpretation of § 1915(g), the
filing-fee provision of the Prison Litigation Reform Act, and its determination of
qualifying strikes. See Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998),
abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910 (2007).
We review the scope of a § 1915(g) injunction only for an abuse of discretion.
Miller v. Donald, 541 F.3d 1091, 1096 (11th Cir. 2008).
Section 1915(g) of the PLRA provides:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner has, on
3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States that
was dismissed on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
7
28 U.S.C. § 1915(g). “After the third meritless suit, the prisoner must pay the full
filing fee at the time he initiates suit.” Dupree v. Palmer, 284 F.3d 1234, 1236
(11th Cir. 2002) (internal quotation omitted).
Smith concedes that the district court properly determined that two of his
prior cases qualify as strikes. The district court erred, however, because the third
case it cited as a strike was vacated by this Court and remanded for further
proceedings. Despite that mistake the district court reached the right conclusion.
We take judicial notice of the fact that Smith has at least one other case (for a total
of at least three) that was dismissed for failure to state a claim or found to be
frivolous. Smith therefore cannot proceed in future civil cases without prepaying
the filing fee under § 1915, unless a statutory exception applies. See In re Delta
Resources, Inc., 54 F.3d 722, 725 (11th Cir. 1995) (“[T]his Court may take judicial
notice of another court’s order for the limited purpose of recognizing the ‘judicial
act’ that the order represents or the subject matter of the litigation and related
filings.” (internal quotation omitted)); McCoy v. United States, 266 F.3d 1245,
1254 (11th Cir. 2001) (we may affirm on any ground supported by the record).
Smith also argues that the injunction is too broad, especially because it
concerns his activities in “every court of the United States.” Contrary to Smith’s
assertions, however, the district court did not totally prohibit him from filing future
8
complaints or petitions. Unlike Miller, 541 F.3d at 1099, where we held that a
particular “§ 1915(g)-plus” injunction was an abuse of discretion, the scope of the
injunction in this case matches the scope of the PLRA. The injunction only
prohibits Smith from filing IFP petitions in civil cases that are litigated in federal
court. It does not affect filings where Smith pays the appropriate fee, criminal
cases, or litigation in state courts. The district court quoted § 1915 in
full—including its exception for cases where the prisoner is in danger of serious
physical injury—and did not add any sanction beyond what the statute specifically
permits. The district court’s injunction was not an abuse of discretion.2
AFFIRMED.
2
Smith also raises several constitutional objections to the district court’s injunctive order,
but those are foreclosed by our prior panel precedent. See Rivera, 144 F.3d at 732 (holding that
§ 1915(g) does not violate a prisoner’s right to access the courts, separation of powers, due
process, or equal protection).
9