United States District Court for the Southern District of Florida

Walter James Morris, Jr., Plaintiff, ) ) v. ) ) Civil Action No. 20-22502-Civ-Scola Ms. Hightower, Director of the ) Medical Department for Dade C.I., ) Defendant. )

Order This matter is before the Court on Plaintiff Walter James Morris Jr.’s motion to appeal in forma pauperis and to appoint counsel. (ECF No. 16.) The motion is denied. (ECF No. 16.) Plaintiff filed a civil rights complaint pursuant to

, the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. The complaint alleged the Medical Director for the state of Florida’s Dade Criminal Institution discriminated against the Plaintiff when she did not provide the Plaintiff with a new neck collar, wheelchair cushion and back brace because the Plaintiff is “gender-neutral, and not [] gender-based.” (ECF No. 1 at 2.) This Court dismissed Plaintiff’s claims as frivolous because they had no arguable merit in law or fact despite an earlier opportunity to amend (ECF No. 13.) Plaintiff filed a notice of appeal to the United States Court of Appeals for the Eleventh Circuit. (ECF No. 15.) A court may authorize a party to proceed in forma pauperis upon an affidavit of indigency.

(a); see Fed. R. App. P. 24(a)(1). An appeal, however, may not be taken in forma pauperis if it is not taken in good faith.

(a)(3); accord Fed. R. App. P. 24(a)(3)(A). A party who seeks appellate review of an issue does so in good faith if the issue is not frivolous. Higgins v. Altonaga, No. 18-22026-CIV,

, at *1 (S.D. Fla. June 4, 2018) (Cooke, J.). An appeal filed in forma pauperis is frivolous if “it appears that the Plaintiff has little or no chance of success,” in other words that the “factual allegations are clearly baseless or that the legal theories are indisputably meritless.”

(citing Carroll v. Gross,

(11th Cir. 1993)). Plaintiff’s claims are frivolous and thus, the Plaintiff may not appeal in forma pauperis. The complaint fails to allege any cognizable claim under the ADA, Rehabilitation Act, or Section 1983. The complaint does not allege that being gender neutral resulted from physical impairments, accordingly, the complaint does not allege a recognized disability under the ADA or Rehabilitation Act. Shorter v. Barr,

, at *10 (N.D. Fla. Mar. 13, 2020), report and recommendation adopted,

(N.D. Fla. Apr. 22, 2020). Moreover, even if the ADA and Rehabilitation Act did protect against discrimination based on Gender Dysphoria, the Plaintiff's demands for new medical equipment do not appear to have a nexus to Gender Dysphoria. Finally, in the absence of a clearly established right to replacement medical equipment such as equipment requested here, the Plaintiff has failed to adequately allege a violation of Section 1983. For these reasons, the Plaintiff's claims are frivolous and the motion to proceed in forma pauperis must be denied. The Plaintiff's motion for appointment of counsel is likewise denied. “A plaintiff in a civil case has no constitutional right to counsel.” Bass v. Perrin,

, 1320 (11th Cir. 1999). Under

(e)(1), the district court has discretion to appoint counsel for an indigent plaintiff, but counsel should be appointed only in exceptional circumstances. See Steele v. Shah,

(11th Cir. 1996); Bass, 170 F.3d at 1320. Exceptional circumstances generally exist “where the facts and legal issues are so novel or complex as to require the assistance of a trained practitioner.” See Fowler v. Jones,

(11th Cir. 1990). Here, the Plaintiff has not shown that this case is exceptionally complex nor that he is unable to present his cause without the help of a trained practitioner. Therefore, the Clerk declines to appoint counsel to the Plaintiff. Accordingly, the Court denies Plaintiff's motion to appoint counsel and to proceed in forma pauperis on appeal. (ECF No. 16.) Done and ordered, in chambers, in Miami, Florida, on February 9, 2021.

(Robert N. Scola, Jr. United States District Judge Copies, via U.S. Mail, to: Walter James Morris, Jr. Inmate #080383 Dade Correctional Institution Inmate Mail/Parcels 19000 SW 377th Street Florida City, FL 33034