Johnny Horttor v. Brad Livingston, Executive Dir ( 2018 )

Case: 17-10711 Document: 00514541030 Page: 1 Date Filed: 07/05/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-10711 July 5, 2018
Summary Calendar
Lyle W. Cayce
Clerk
JOHNNY HORTTOR,
Plaintiff-Appellant
v.
BRAD LIVINGSTON, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE; BRYAN COLLIER, EXECUTIVE DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE; L. GONZALES, Warden; IN YANG
WILSON, Physician’s Assistant,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:16-CV-214
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Johnny Horttor, Texas prisoner # 2042196, filed a pro se complaint under
42 U.S.C. § 1983 alleging that he suffered deliberate indifference to his medical
needs. He appeals the order of the magistrate judge (MJ) denying his motion
to reconsider the denial of appointment of counsel and directing him to file an
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 17-10711
amended complaint that would supersede his earlier pleadings. Horttor
contends that the court abused its discretion in denying appointed counsel,
ordering the filing of the amended complaint, and failing to review and to hold
a hearing on Horttor’s motion for a preliminary injunction.
“Generally, this court’s jurisdiction is limited to review of the district
courts’ final orders, qualified interlocutory orders, and collateral orders.”
Goodman v. Harris Cty., 443 F.3d 464, 467 (5th Cir. 2006); see 28 U.S.C. § 1291;
28 U.S.C. § 1292. An order denying the appointment of counsel in a civil rights
action is immediately appealable. Robbins v. Maggio, 750 F.2d 405, 413 (5th
Cir. 1985).
Appointment of counsel for an indigent plaintiff in a civil rights case is
not required unless the case presents exceptional circumstances. Ulmer
v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). In this case, the court did
not abuse its discretion in denying the appointment of counsel without
prejudice on the ground that screening under 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A was not yet completed. See id. Accordingly, we affirm the
denial of the appointment of counsel, but note that the required screening
should be conducted as soon as possible.
The order directing Horttor to a file an amended complaint is not an
immediately appealable order. See Levy v. Sec. & Exch. Comm’n, 405 F.2d 484,
486 (5th Cir. 1968); see also Reedom v. Mosley, No. 94-11097, 51 F.3d 1041,
1995 WL 152857, at *1 (5th Cir. 1995) (unpublished); 5TH CIR. R. 47.5.3. We
therefore dismiss Horttor’s challenge to that order for lack of jurisdiction.
To the extent Horttor’s argument that the MJ failed to review his motion
for a preliminary injunction is a challenge to the MJ’s order to stay the
proceedings pending this appeal, we also lack jurisdiction to review the stay
order. A timely “notice of appeal in a civil case is a jurisdictional requirement.”
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Bowles v. Russell, 551 U.S. 205, 214 (2007). Horttor’s notice of appeal was filed
before the stay order was issued and therefore is inapplicable to the stay order.
See Fiess v. State Farm Lloyds, 392 F.3d 802, 806 (5th Cir. 2004).
Although Horttor’s argument that the court failed to review his motion
for a preliminary injunction may be liberally construed as a petition for a writ
of mandamus, mandamus relief is available only in “exceptional circumstances
amounting to a judicial usurpation of power or a clear abuse of discretion.”
Grace v. Vannoy, 826 F.3d 813, 821 n.8 (5th Cir. 2016) (internal quotation
marks and citation omitted). Horttor’s case does not present such
circumstances, and we thus deny mandamus relief to the extent Horttor seeks
it.
Horttor has also filed motions in this court for the appointment of
counsel, a temporary restraining order and preliminary injunction, and
summary judgment. We deny the motions. Horttor has not shown that
exceptional circumstances exist warranting the appointment of counsel on
appeal, see Ulmer, 691 F.2d at 213, or injunctive relief by this court in the first
instance, see Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009); Greene v.
Fair, 314 F.2d 200, 202 (5th Cir. 1963).
Horttor’s remaining motion seeks summary judgment granting
immediate medical treatment and damages or, alternatively, a certificate of
appealability to allow review of this case by the United States Supreme Court.
We do not have authority to consider a motion for summary judgment brought
in this court in the first instance. Cf., Wolf v. Bank of Am. Nat. Ass’n, 630 F.
App’x 354, 356 (5th Cir. 2016) (“claims raised for the first time on appeal will
not be considered”). Further, review of this case by the Supreme Court
requires a writ of certiorari that only the Supreme Court can grant, and a
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certificate of appealability is not otherwise applicable to a § 1983 action. See
28 U.S.C. § 2253(c). Accordingly, we deny both motions.
The appeal is DISMISSED IN PART for lack of jurisdiction and
AFFIRMED IN PART; a writ of mandamus is DENIED; and Horttor’s motions
for the appointment of counsel, a temporary restraining order and preliminary
injunction, and summary judgment are DENIED.
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