     Case: 10-60195 Document: 00511329048 Page: 1 Date Filed: 12/21/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 21, 2010
                                     No. 10-60195
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

CHARLES TORNS, JR.,

                                                   Plaintiff-Appellant

v.

MISSISSIPPI DEPARTMENT OR CORRECTIONS, KATHRYN MCINTYRE,
Law Library Technician for Mississippi Department of Corrections and
M ississippi 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:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 2 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Dep’t of Corrections, No. 08-60403 (5th Cir. June 4, 2009) (unpublished).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: 3 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 5 TH C IR. 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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