Larry Clark, Petitioner, v. G. S. Fortner, Superintendent, Florida State Prison, et al.,etc., Respondents, 590 F.2d 1309 (5th Cir. 1979)

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US Court of Appeals for the Fifth Circuit - 590 F.2d 1309 (5th Cir. 1979) Fifth Circuit.Feb. 22, 1979

Larry Clark, pro se.

Shirley Walker, Legal Research Asst., Dept. of Legal Affairs, Civ. Div., Tallahassee, Fla., Horace Schow, II, Asst. Atty. Gen., Tallahassee, Fla., for respondents.

On Application for Leave to Appeal in Forma Pauperis and for Appointment of Counsel.ORDER:

In this case, a Florida prisoner seeks leave to appeal In forma pauperis and for appointment of counsel to represent him on appeal from a summary judgment for respondents in a 42 U.S.C.A. § 1983 claim alleging denial of proper medical attention.

The suit was commenced in 1973 and in 1974 respondents filed an answer, a motion for summary judgment, and a doctor's affidavit. At that time based on these submissions summary judgment for respondents would have been justified under the standards set forth in Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), and an appeal would have been meritless.

Due to the backlog of civil litigation in the Middle District of Florida, however, the case went unattended until 1978 when the district court gave petitioner 20 days to respond to the "motion to dismiss the complaint." In response to this order, petitioner filed an affidavit alleging that he is "still being denied medical attention" and attached two old letters from the Public Defender's Office, Tampa, Florida.

On this record we deny leave to appeal In forma pauperis and the appointment of counsel. The appeal from the district court's judgment appears to be clearly without merit insofar as it deals with the claimed denial of medical attention in 1973 and 1974.

If petitioner presently has grounds to assert a cause of action in the light of the now firmly fixed stringent legal standards for a successful suit of this kind, he should file a new action rather than pursue the appeal of this lawsuit involving events in 1973. Estelle v. Gamble, supra; Bass v. Sullivan, 550 F.2d 229 (5th Cir.), Cert. denied, 434 U.S. 864, 98 S. Ct. 195, 54 L. Ed. 2d 138 (1977); Reeves v. City of Jackson, Mississippi, 532 F.2d 491 (5th Cir. 1976).

Motion for leave to appeal In forma pauperis and for appointment of counsel is DENIED.


/s/ United States Circuit Judge