IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60195

Summary Calendar

CHARLES TORNS, JR.,

Plaintiff-Appellant

v.

MISSISSIPPI DEPARTMENT OR CORRECTIONS, KATHRYN MCINTYRE,

Law Library Technician for Mississippi Department of Corrections and

Mississippi State Penitentiary ILAP; CHRISTOPHER B. EPPS,

COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS;

RICHARD PAUL PENNINGTON, Director for Mississippi Department of

Corrections and Mississippi State Penitentiary ILAP; LAWRENCE KELLY,

Superintendent for Mississippi State Penitentiary; LARRY C. HARDY,

Mississippi Department of Corrections and Mississippi State Penitentiary ARP

Claims Adjudicator,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:06-CV-75

Before DENNIS, CLEMENT, and ELROD, Circuit Judges.

PER CURIAM:

*

United States Court of Appeals

Fifth Circuit

F I L E D

December 21, 2010

Lyle W. Cayce

Clerk

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.

Case: 10-60195 Document: 00511329048 Page: 1 Date Filed: 12/21/2010
No. 10-60195

Charles Torns, Jr., filed a civil rights action challenging the conditions of

his confinement in May 2006. Prior to bringing the civil rights action, Torns had

accumulated three strikes under 28 U.S.C. § 1915(g). See Torns v. Mississippi

Dep’t of Corrections, No. 08-60403 (5th Cir. June 4, 2009) (unpublished). The

district court revoked Torns’s in forma pauperis (IFP) status, and it dismissed

the civil rights action when Torns failed to pay the filing fee.

Subsequent to his release from prison, Torns filed two motions for relief

from judgment under Rule 60(b) of the Federal Rules of Civil Procedure. The

district court denied these motions. The instant appeal is from the denial of the

second Rule 60(b) motion.

Torns has moved for the appointment of counsel on appeal. He asserts

that he suffered a stroke and that he is not capable of preparing an appellate

brief. Torns also questions the constitutionality of § 1915(g), and he contends

that a recently released prisoner should be permitted to proceed with a civil

rights action.

Pursuant to Fifth Circuit Rule 42.2, “[i]f upon the hearing of any

interlocutory motion . . . it appears to the court that the appeal is frivolous and

entirely without merit, the appeal will be dismissed.” For the reasons discussed

below, we dismiss Torns’s appeal and deny the motion for appointment of

counsel.

The extraordinary relief afforded by Rule 60(b) requires that the moving

party make a showing of unusual or unique circumstances justifying such relief.

Pryor v. U. S. Postal Serv., 769 F.2d 281, 286 (5th Cir. 1995). Whether to grant

or deny Rule 60(b) relief is within the sound discretion of the district court.

Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). “It is not enough

that the granting of relief might have been permissible, or even warranted—

denial must have been so unwarranted as to constitute an abuse of discretion.”

Id.

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Case: 10-60195 Document: 00511329048 Page: 2 Date Filed: 12/21/2010
No. 10-60195

As a consequence of his accumulation of three strikes in 2004, Torns was

from that point forward barred from bringing a civil action under the IFP

provisions while he was a prisoner, unless he was under imminent danger of

serious physical injury. See § 1915(g); Baños v. O’Guin, 144 F.3d 883, 885 (5th

Cir.1998) (stating that “the language of § 1915(g), by using the present tense,

clearly refers to the time when the action or appeal is filed or the motion for IFP

status is made.”). Torns’s subsequent release from prison did not entitle him to

proceed IFP on an action that he had brought while he was a prisoner subject to

the three-strikes bar. See Baños, 144 F.3d at 885; see also Harris v. City of New

York, 607 F.3d 18, 21-22 (2d Cir. 2010) (“Had Congress intended that the three

strikes rule would no longer apply once a prisoner had been released, it would

have written the statutory provision differently.”).

To the extent that Torns may wish to raise a challenge to the

constitutionality of § 1915(g) in the instant appeal, his appeal would be without

merit. This court has already considered and upheld the constitutionality of

§ 1915(g). See Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir. 1997). Torns’s

appeal of the district court’s denial of his second Rule 60(b) motion is frivolous

and it is therefore dismissed. See 5TH CIR. R. 42.2.

There is no automatic right to the appointment of counsel in a section 1983

case. Jackson v. Dallas Police Dep’t., 811 F.2d 260, 261 (5th Cir. 1986). Counsel

should not be appointed in a civil rights action in the absence of “exceptional

circumstances.” Id. The instant appeal does not warrant the appointment of

counsel. See id. Accordingly, Torns’s motion for the appointment of counsel is

denied, as are all pending motions.

APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL

DENIED; ALL PENDING MOTIONS DENIED.

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Case: 10-60195 Document: 00511329048 Page: 3 Date Filed: 12/21/2010