            Case: 15-13985   Date Filed: 10/27/2016   Page: 1 of 8


                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13985
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cv-00242-CAP



WILEY CURRY,

                                                            Plaintiff-Appellant,

                                    versus

SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (October 27, 2016)

Before HULL, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Wiley Curry, proceeding pro se and in forma pauperis (“IFP”), appeals from

the district court’s order dismissing with prejudice his complaint, brought under

the Rehabilitation Act, 29 U.S.C. § 791, and certain EEOC regulations, 29 C.F.R. §

1614.101, et seq. Curry sued the United States Department of Health and Human

Services (the “DHHS”) after he interviewed for, but did not receive, a job with the

Center for Disease Control (the “CDC”). On appeal, Curry argues the district court

erred in failing to grant his request for appointment of counsel. Curry also argues

that that the district court erred in dismissing his amended complaint with

prejudice, and finally, that the district court erred in denying his motion to appeal

to this Court IFP.

      We address each point in turn.

                     I.     MOTION TO APPOINT COUNSEL

      We review a district court’s decision whether to appoint counsel for an

abuse of discretion. Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir. 1992).

Specifically,

      A civil litigant, . . . has no absolute constitutional right to the
      appointment of counsel. The appointment of counsel is instead a
      privilege that is justified only by exceptional circumstances, such as
      where the facts and legal issues are so novel or complex as to require
      the assistance of a trained practitioner.

Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (per curiam) (citations

omitted).


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      We have indicated that, at least at the district court level, when determining

whether “exceptional circumstances” exist the relevant factors include: (1) the type

and complexity of the case, (2) whether the indigent is capable of adequately

presenting his case, (3) whether the indigent is in a position to adequately

investigate the case, and (4) whether the evidence will consist in large part of

conflicting testimony so as to require skill in the presentation of evidence and in

cross examination. Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990) (citing

Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982), which set forth those

factors for the same “exceptional circumstances” standard used by the Fifth Circuit

and this Circuit). Moreover, court-appointed counsel is unnecessary where the

essential facts and legal doctrines are ascertainable without assistance. Wahl v.

McIver, 773 F.2d 1169, 1174 (11th Cir. 1985) (per curiam).

      Here, the district court did not abuse its discretion in denying Curry’s motion

to appoint counsel. See Dean, 951 F.2d at 1216. Specifically, the factors applied

in Fowler do not weigh in favor of appointment of counsel. See Fowler, 889 F.2d

at 1096. The case does not present complex or novel issues, and there is no

evidence that Curry is incapable of presenting the case, as he (1) apparently viewed

himself as qualified for the paralegal specialist position he applied for, (2) timely

replied to the court’s order to file an amended complaint, (3) timely filed a notice

of appeal and motion to proceed IFP in this Court, and (4) has generally litigated


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the case fully up to this point. See id. Further, Curry is not incarcerated and thus

appears capable of fully investigating the case. See id. Finally, the fourth factor

does tend to weigh in Curry’s favor, as the case could potentially turn on

competing testimony between the CDC employees who interviewed, but did not

hire Curry, and Curry himself. But the factors as a whole do not weigh in favor of

Curry’s argument, and the district court did not abuse its discretion in denying

Curry’s motion to appoint counsel. Accordingly, we affirm in this respect.

                         II.     DISMISSAL WITH PREJUDICE

       A district court may dismiss an action for failure to comply with the rules of

the court under Federal Rule 41(b) or pursuant to its own inherent authority. In

either case, we review such a district court order for abuse of discretion. Zocaras

v. Castro, 465 F.3d 479, 483 (11th Cir. 2006); Veazey v. Young’s Yacht Sale &

Serv., Inc., 644 F.2d 475, 477 (5th Cir. 1981).1 Although we give liberal

construction to the pleadings of pro se litigants, we have nevertheless required

them to conform to procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829

(11th Cir. 2007) (per curiam). “[I]ssues not briefed on appeal by a pro se litigant

are deemed abandoned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)

(per curiam).



1
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981.
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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      Northern District of Georgia Local Rule 41.3(A)(2) provides that a district

court may dismiss a civil action for want of prosecution if a plaintiff fails or

refuses to obey a lawful order of the court. N.D. Ga. Local R. 41.3(A)(2). A court

may also dismiss an action sua sponte under Rule 41(b) for failure to prosecute or

failure to obey a court order. Fed. R. Civ. P. 41(b); Lopez v. Aransas Cty. Indep.

Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978). The district court’s “power to

dismiss is an inherent aspect of its authority to enforce its orders and ensure

prompt disposition of lawsuits.” Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir.

1983) (per curiam). Unless the court specifies otherwise, an involuntary dismissal

under Rule 41, other than a dismissal for lack of jurisdiction, improper venue, or

lack of an indispensable party, is with prejudice. Fed. R. Civ. P. 41(b).

      However, dismissal with prejudice is only proper when “the district court

finds a clear record of delay or willful conduct and that lesser sanctions are

inadequate to correct such conduct.” Zocaras, 465 F.3d at 483 (quotation marks

omitted). The district court must consider the possibility of alternative, lesser

sanctions but need not do so explicitly. Id. at 484. “While dismissal is an

extraordinary remedy, dismissal upon disregard of an order, especially where the

litigant has been forewarned, generally is not an abuse of discretion.” Moon v.

Newsome, 863 F.2d 835, 837 (11th Cir. 1989).




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      Because Curry does not challenge on appeal the absence of an express

finding by the district court that he acted willfully and that lesser sanctions would

not suffice, any issue in that respect is abandoned. See Timson, 518 F.3d at 874.

In any event, although the district court did not explicitly find a clear record of

delay or willfulness, or that lesser sanctions were inadequate, such findings can be

made implicitly, and the record here supports such a finding. See Zocaras, 465

F.3d at 484.

      Curry does not argue that he did not willfully disregard the court’s order to

amend his complaint; rather, he maintains that his complaint was proper from the

beginning, and that the court’s instructions on how to amend his complaint were

ambiguous. We agree, however, with the district court that the instructions Curry

failed to follow were not so complex or legal that a pro se litigant would be unable

to follow them. Further, in seeking reconsideration of the court’s order, Curry

sought not another opportunity to comply, but a chance to “explain [his] reasoning

behind the structure of [his] amendment to the [the] complaint . . . .” This

implicitly supports a finding that Curry willfully ignored the court’s instructions.

      With respect to the efficacy of lesser sanctions, Curry’s amended complaint

disregarded the district court’s instructions in multiple ways. It again incorporated

allegations by reference and included Count Two, which the district court

instructed Curry to exclude. Further, Curry sought reconsideration of the denial of


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appointment of counsel twice and reconsideration of the dismissal of his amended

complaint once, and in the latter motion, sought an opportunity to “explain [his]

reasoning” to the court. Generally, dismissal for disregard of a court order, after

forewarning the litigant, which is what happened here, is not an abuse of

discretion. Moon, 863 F.2d at 837. The record supports the district court’s

implicit determination that lesser sanctions would not suffice, and Curry has

provided us no compelling reason to conclude that the district court abused its

discretion. Accordingly, we affirm in this respect.

             III.   APPLICATION TO PROCEED IFP ON APPEAL

      A notice of appeal must, among other things, “designate the judgment, order,

or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). Ordinarily, the failure

to abide by the requirement of Rule 3(C)(1)(B) will preclude the appellate court

from reviewing any judgment or order not so specified. McDougald v. Jenson, 786

F.2d 1465, 1474 (11th Cir. 1986). Moreover, a district court order denying leave

to proceed on appeal IFP is not a final appealable order. See Fed. R. App. P.

24(a)(5); Gomez v. United States, 245 F.2d 346, 347 (5th Cir. 1957) (indicating

that the correct procedure is to renew the motion in the appellate court). Because

Curry did not designate in his notice of appeal the district court’s order denying

him leave to proceed IFP on appeal, and because the denial order is not an




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appealable final order, this Court does not have jurisdiction to consider Curry’s

challenge to the district court’s IFP ruling.

      Additionally, “a federal court has no authority to give opinions upon moot

questions or abstract propositions, or to declare principles or rules of law which

cannot affect the matter in issue in the case before it.” Zinni v. ER Sols., Inc., 692

F.3d 1162, 1166 (11th Cir. 2012) (quotation marks omitted). Even if we had

jurisdiction to review the district court’s IFP ruling, any issue from that ruling is

now moot because we granted Curry leave to proceed IFP on appeal.

      AFFIRMED.




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