MCCRAY v. DOES

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
SERGIO VASEAN MCCRAY, :
:
Plaintiff, :
:
v. : Case No. 5:26-cv-8-MTT-ALS
:
JOHN AND OR JANE DOES, :
:
Defendants. :
ORDER
Before the Court is a document filed by pro se Plaintiff Sergio Vasean McCray, a prisoner
currently confined at Hancock State Prison in Sparta, Georgia, that has been docketed as a
Complaint seeking relief pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff also filed a motion for
an extension of time to submit the forms required for proceeding in forma pauperis (“IFP”) and
requesting appointed counsel. (Doc. 3). For the following reasons, Plaintiff must (1) either pay the
Court’s filing fee in full or submit a proper and complete motion for leave to proceed IFP and
(2) recast his Complaint on the Court’s standard form within TWENTY-ONE (21) DAYS of the
date of this Order if he wishes to proceed with his claims.
MOTION TO PROCEED IFP
As an initial matter, Plaintiff has not paid the Court’s $405.00 filing fee or submitted a
motion to proceed IFP. A prisoner proceeding IFP must submit (1) an affidavit in support of his
claim of indigence and (2) “a certified copy of [his] trust fund account statement (or institutional
equivalent) . . . for the 6-month period immediately preceding the filing of the complaint.”
28 U.S.C. § 1915(a)(1)-(2). Without a motion containing this information, the Court cannot
determine whether Plaintiff is entitled to proceed IFP or calculate the average monthly deposits or
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the average monthly balance in Plaintiff’s prison trust account as required by 28 U.S.C. § 1915.
See id. (requiring the district court to assess an initial partial filing fee when funds are available).
Plaintiff is thus ORDERED to either pay the Court’s $405.00 filing fee in full or submit a proper
and complete motion to proceed without the prepayment of the filing fee, which should include a
certified copy of his trust fund account statement. The Clerk is DIRECTED to provide Plaintiff
with the appropriate forms for this purpose, marked with the case number of this case. Plaintiff
shall have TWENTY-ONE (21) DAYS from the date of this Order to comply.1
ORDER TO RECAST COMPLAINT
If Plaintiff wishes to continue with this action, he is also ORDERED to recast his
Complaint on the Court’s standard form within TWENTY-ONE (21) DAYS of the date of this
Order. The recast complaint must contain a caption that clearly identifies, by name, each
individual or entity that Plaintiff has a claim against and wishes to include as a defendant in this
action.2 Plaintiff is to name only the individuals associated with the claim or related claims that
he is pursuing in this action. Plaintiff must then tell the Court exactly how that individual violated
his constitutional or federal statutory rights, including (1) what each defendant did (or did not do)
to violate his rights; (2) when and where each action occurred; and (3) how Plaintiff was injured
as a result of each defendant’s actions. Plaintiff must complete the entire complaint form.
1 The Court recognizes that Plaintiff filed a motion requesting additional time to file his trust account certification.
(Doc. 3). The Court ordinarily gives fourteen days to file a response but has extended the response time in this case to
twenty-one days. To the extent Plaintiff requests additional time, his motion (Doc. 3) is DENIED as moot.
2 Generally, “fictitious party pleading is not permitted in federal court.” Richardson v. Johnson, 598 F.3d 734, 738
(11th Cir. 2010). This means that a plaintiff cannot simply name “John Doe” as a defendant if he does not know the
defendant’s actual name. The only exception to this rule is when the plaintiff’s description of the defendant is so
specific that the party may be identified for service even though his actual name is unknown. See id. (citing Dean v.
Barber, 951 F.2d 1201, 1215-16 (11th Cir. 1992)). Therefore, to proceed against an unnamed defendant, a plaintiff
must provide a “description of some kind which is sufficient to identify the person involved so that process can be
served.” Dean, 951 F.2d at 1216 (internal quotation marks omitted).
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Plaintiff’s recast complaint shall take the place of and supersede all allegations made
in the original Complaint (ECF No. 1). The Court will only consider the factual allegations and
claims contained in Plaintiff’s recast complaint on the enclosed § 1983 form. Thus, any fact
Plaintiff deems necessary to his lawsuit should be clearly stated in his recast complaint, even if
Plaintiff has previously alleged it in another filing. As stated above, Plaintiff must name each
defendant he wishes to sue and if Plaintiff fails to link a named defendant to a claim, the claim will
be dismissed. The Clerk is DIRECTED to send Plaintiff a copy of the Court’s standard § 1983
form, marked with the case number for this case, that Plaintiff should use to submit his recast
complaint.
MOTION FOR APPOINTED COUNSEL
Plaintiff also moved for appointed counsel in this case. (Doc. 3). A district court “may
request an attorney to represent any person unable to afford counsel.”3 28 U.S.C. § 1915(e)(1).
There is, however, “no absolute constitutional right to the appointment of counsel” in a § 1983
lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (citations omitted). Appointment
of counsel is “instead a privilege that 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.” Id. (citations omitted). In determining whether a case presents extraordinary
circumstances, the Court considers
(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; (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”; and (5) whether the appointment of counsel would be of
3 The statute, however, does not provide any funding to pay attorneys for their representation or authorize courts to
compel attorneys to represent an indigent party in a civil case. See Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490
U.S. 296, 310 (1989); Taylor v. Pekerol, 760 F. App’x 647, 651 (11th Cir. 2019) (citations omitted) (stating that the
district court has no “inherent power” to compel counsel to represent a civil litigant and § 1915(e)(1) provides no such
authority).
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service to the parties and the court “by sharpening the issues in the case, shaping
the examination of witnesses, and thus shortening the trial and assisting in a just
determination.” The District Court may also inquire into whether the plaintiff has
made any effort to secure private counsel.
DeJesus v. Lewis, 14 F.4th 1182, 1204-05 (11th Cir. 2021) (quoting Ulmer v. Chancellor, 691 F.2d
209, 213 (5th Cir. 1982)).
The Court has considered Plaintiff’s motion and—after applying the factors set forth
above—concludes that the appointment of counsel is not justified. Plaintiff has demonstrated the
ability to litigate his case, including filing pleadings and motions sufficiently setting out his
contentions to allow review by this Court. Plaintiff’s case is not complex. Additionally, at this
early stage in the litigation, it is unclear if the case will proceed to trial. Thus, there is no basis to
conclude that counsel will be needed for the presentation of evidence or cross examination of
witnesses. Plaintiff, “like any other litigant[], undoubtedly would [be] helped by the assistance of
a lawyer, but [his] case is not so unusual” that appointed counsel is necessary. Bass v. Perrin, 170
F.3d 1312, 1320 (11th Cir. 1999).
As such, Plaintiff’s motion for appointment of counsel (ECF No. 3) is DENIED. Should it
later become apparent that legal assistance is required in order to avoid prejudice to Plaintiff’s
rights, the Court, on its own motion, will consider assisting him in securing legal counsel at that
time. Consequently, there is no need for Plaintiff to file additional requests for counsel.
CONCLUSION
Based on the foregoing, Plaintiff is ORDERED to (1) pay the $405.00 filing fee in full or
submit a complete and proper motion for leave to proceed IFP, to include a certified copy of his
prison trust fund account information, and (2) recast his Complaint as explained above within
TWENTY-ONE (21) DAYS of the date of this Order if he wishes to proceed with his claims.
Plaintiff’s motion for appointed counsel (ECF No. 3) is DENIED. Plaintiff is further DIRECTED
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to notify the Court immediately in writing of any change in his mailing address. If Plaintiff does
not timely and fully comply with this Order, this action may be dismissed. There shall be no
service of process in this case until further order of the Court.
SO ORDERED, this 5th day of February, 2026.
s/ ALFREDA L. SHEPPARD
UNITED STATES MAGISTRATE JUDGE
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