* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-40952

Summary Calendar

 

JIMMY L. MCSHAN,

Plaintiff-Appellant,

versus

MICKEY L. HUBERT, Sheriff of

Anderson County, TX, ET AL.,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:95-CV-308

- - - - - - - - - -

June 9, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

Jimmy L. McShan appeals from the magistrate judge’s

dismissal of his 42 U.S.C. § 1983 complaint following a bench

trial. He argues that the magistrate judge abused her discretion

in refusing to appoint counsel to represent him and in imposing

costs at the conclusion of the action, and that the magistrate

judge erred in dismissing all of his medical claims as time

barred by the applicable two-year statute of limitations.
No. 96-40952

-2-

McShan has not demonstrated such exceptional circumstances

as to warrant the appointment of counsel. Ulmer v. Chancellor,

691 F.2d 209, 212 (5th Cir. 1982). Accordingly, it was not an

abuse of the magistrate judge’s discretion to refuse to appoint

McShan counsel to represent him. Jackson v. Dallas Police Dep't,

811 F.2d 260, 261 (5th Cir. 1986). 

Taxing McShan the cost of filing the initial complaint was

not an abuse of discretion. 28 U.S.C. § 1915(f)(1); Moore v.

McDonald, 30 F.3d 616, 621 (5th Cir. 1994). However, the

magistrate judge’s order that McShan “be barred from filing any

new lawsuits in this Court until these costs are paid in full” is

an abuse of discretion. The cases relied upon by the magistrate

judge are distinguishable as they involve either frequent filers

or otherwise abusive litigants. See Jackson v. Carpenter, 921

F.2d 68, 69 (5th Cir. 1991) (sixth lawsuit involving same

dispute); Vinson v. Texas Bd. of Corrections, 901 F.2d 474, 475

(5th Cir. 1990) (barred only after being warned and after having

filed more than one frivolous and malicious lawsuit); Kennedy v.

Collins, No. 94-20207 (5th Cir. May 17, 1994) (involved frequent

litigant); Thomas v. Inmon, No. 90-4838 (involved frequent

litigant); Prows v. United States, No. 91-8085 (5th Cir. Sept. 8,

1992) (sanctioned for using abusive and offensive language). 

There is no indication that McShan has filed multiple lawsuits,

and he received no sanction warning. “`The imposition of a

sanction without a prior warning is generally to be avoided.’” 
No. 96-40952

-3-

Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993) (citation

omitted). Accordingly, we REVERSE the magistrate judge’s order

barring McShan from filing future lawsuits. Nothing in this

order, however, prohibits the magistrate judge from imposing such

a sanction should McShan fail to pay the costs in the manner

ordered by the lower court.

Finally, contrary to McShan’s contention, the magistrate

judge did not dismiss all of his medical claims as time-barred. 

The magistrate judge dismissed those claims that were not timebarred as without merit. 

Accordingly, the judgment of the magistrate judge is

AFFIRMED IN PART and REVERSED AND REMANDED IN PART.