IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10711

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

FILED

July 5, 2018

Lyle W. Cayce

Clerk

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No. 17-10711

2

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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