The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
MARK T. STINSON, )
)
Plaintiff, )
)
v. ) No. 24-cv-2560-MSN-tmp
)
WAYNE HADDIX d/b/a 385 )
VENTURES PARTNERSHIP, )
AMERIPRISE FINANCIAL )
SERVICES, INC., and SHELBY )
COUNTY BOARD OF EDUCATION, )
)
Defendants. )
)
________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR REFUND (ECF NO. 33) AND
MOTION FOR APPOINTMENT OF COUNSEL (ECF NO. 34)
________________________________________________________________
Before the court are pro se plaintiff Mark Stinson’s
Motion for Refund and Motion for Appointment of Counsel.1 (ECF
Nos. 33, 34.) For the reasons below, the motions are DENIED.
I. BACKGROUND
Stinson filed his pro se complaint in the Southern
District of Florida against defendants Wayne Haddix, Ameriprise
Financial Services, Inc. (“Ameriprise”), and Shelby County Board
of Education (“the Board”) on December 13, 2023, alleging
various claims for breach of contract, breach of fiduciary duty,
1Pursuant to Administrative Order No. 2013-05, this case has been
referred to the United States magistrate judge for management of
all pretrial matters for determination or report and
recommendation, as appropriate.
fraud, and violations of the Tennessee Consumer Protection Act.
(ECF No. 1.) At that time, Stinson moved the court for leave to
proceed in forma pauperis. (ECF Nos. 1, 3.) On December 18,
2023, Stinson moved the court for referral to the Southern
District of Florida’s Volunteer Attorney Program. (ECF No. 5.)
Before the court ruled on Stinson’s IFP motion, Stinson
paid the $405 filing fee on January 3, 2024. (ECF No. 7.)
Accordingly, the court denied Stinson’s IFP motion as moot on
January 17. (ECF No. 12.)
On January 26, 2024, the court granted Stinson’s motion
for referral to the volunteer attorney program, which provides
that “a volunteer attorney may accept the representation on a
pro bono basis.” (ECF No. 16 at PageID 82) (emphasis added). On
June 6, 2024, Stinson again moved the court for appointed
representation under the volunteer attorney program, explaining
that he was “being detained.”2 (ECF No. 29 at PageID 29.) On June
25, 2024, the court denied Stinson’s motion as moot and
duplicative because Stinson’s complaint was already referred to
the volunteer attorney program. (ECF No. 31.)
Stinson filed the instant motions on July 23, 2024. (ECF
Nos. 33, 34.) On August 8, 2024, before ruling on those motions,
2Stinson filed three notices of address changes with the court,
explaining that he was detained starting February 13, 2024. (ECF
Nos. 23, 24, 25.) As of March 28, 2024, Stinson is currently
being held at the Shelby County Correctional Center within this
district. (ECF No. 25.)
District Judge James Lawrence King sua sponte transferred the
case to the Western District of Tennessee under 28 U.S.C. §
1406(a), finding that venue was improper in the Southern
District of Florida. (ECF No. 35.)
II. MOTION FOR REFUND
In his Motion for Refund, Stinson requests that the court
issue a refund for “all fee’s [sic] associated with this case.”
(ECF No. 33 at PageID 33.) Stinson explains that he “is a 100%,
disable[d], decorated, Gulf War Veteran.” (Id. at PageID 33-34.)
In support, Stinson cites Supreme Court Rule 40(1);3 38 U.S.C. §
432(h)(1), which the court interprets as 38 U.S.C. § 4323(h)(1)4
because Stinson’s cited provision does not exist; “congress’s
3This rule provides that:
A veteran suing to establish reemployment rights under
38 U.S.C. § 2022, or under any other provision of law
exempting veterans from the payment of fees or court
costs, may proceed without prepayment of fees or costs
or furnishing security therefor and may file a motion
for leave to proceed on papers prepared as required by
Rule 33.2. The motion shall ask leave to proceed as a
veteran and be accompanied by an affidavit or
declaration setting out the moving party's veteran
status. A copy of the motion shall precede and be
attached to each copy of the petition for a writ of
certiorari or other substantive document filed by the
veteran.
Sup. Ct. R. 40(1).
4This provision under the Uniformed Services Employment and
Reemployment Rights Act provides that “[n]o fees or court costs
may be charged or taxed against any person claiming rights under
this chapter.” 38 U.S.C. § 4323(h)(1).
intent in [the Uniformed Services Employment and Reemployment
Rights Act (“USERRA”)]”; Desert Palace, Inc. v. Costa, 539 U.S.
90 (2003), which holds that direct evidence is not required in
mixed-motive employment discrimination cases under Title VII of
the Civil Rights Act of 1964, id. at 101-02; Fincher v. Ga.
Pac., LLC., No. 1:08-CV-3839-JOF, 2009 WL 1075269 (N.D. Ga. Apr.
21, 2009), holding that a plaintiff was entitled to a refund in
his suit under USERRA; and Florida Rule of Civil Procedure
1.010, which describes the applicability of the Florida Rules of
Civil Procedure. (ECF No. 33 at PageID 33-34.) These authorities
are not only unpersuasive, but also irrelevant to Stinson’s
requested relief. Stinson is not before the Supreme Court, nor
has he sued under USERRA. Notably, the Supreme Court has also
found that Stinson “has repeatedly abused [the Supreme Court’s]
process,” directing the Clerk not to accept petitions in any
noncriminal matters unless he has paid required filing fees. In
re Mark T. Stinson, 144 S. Ct. 268 (Mem) (2023). Stinson also
chose to pay the filing fee rather than wait for the court to
rule on his IFP application. (ECF Nos. 7, 12.) He has thus not
shown that he is entitled to a refund.
Accordingly, Stinson’s Motion for Refund is DENIED.
III. MOTION FOR APPOINTMENT OF COUNSEL
In his Motion for Appointment of Counsel, Stinson asks
that the court appoint him representation “due to the
voluminous, novel and complex illegal matters in this case.”
(ECF No. 34 at PageID 169.) He again explains that he “is a
100%, disable[d], decorated, Gulf War Veteran that has been
diagnosed with P.T.S.D.,” and cites Frederick v. Watson, No.
2:20-cv-121, 2020 WL 13917782 (S.D. Ga. Dec. 4, 2020) (denying
the incarcerated plaintiff’s motion for appointment of counsel),
in support of his request.
“The appointment of counsel in a civil proceeding is not a
constitutional right and is justified only in exceptional
circumstances.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir.
2003) (citing Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir.
1993)). Pursuant to Administrative Order 2023-38, “[b]efore
appointing counsel to represent a party in a case, the presiding
judge will consider the party's financial resources, the efforts
of the party to obtain counsel, and whether the party's claim or
defense appears to have merit.” A party seeking appointment of
counsel “may file a motion in their case seeking appointment of
counsel and must submit the [] ‘Declaration of Need by
Litigant.’” Id. “If the motion is granted, the court will enter
an order directing the Clerk to locate and obtain the consent of
counsel to be appointed, and upon acceptance of the appointment,
the court will enter an order in the case making the
appointment.” Kiner v. City of Memphis, No. 23-cv-02805, 2024 WL
2928661, at *1 (W.D. Tenn. Jan. 5, 2024), appeal denied, 2024 WL
559257 (W.D. Tenn. Feb. 12, 2024) (citing Administrative Order
2023-38).
Stinson has not shown that exceptional circumstances exist
justifying the appointment of counsel. The undersigned is
mindful that this is now Stinson’s third request for appointment
of counsel, and that Stinson faces financial challenges because
he is detained.5 However, the undersigned finds that Stinson’s
claims appear to lack merit. As both Ameriprise and the Board
have argued, it appears that Stinson is attempting to relitigate
claims that were either dismissed or resolved on the merits in a
prior action in Tennessee state court. See Haddix v. Stinson,
No. W2023-00679-COA-R3-CV, 2024 WL 1281522, at *2, *5 (Tenn. Ct.
App. Mar. 26, 2024) (explaining that the trial court found
against Stinson on all claims and dismissed his counterclaims
and dismissing his appeal for failure to comply with procedural
rules). The undersigned therefore finds that appointment of
counsel is not justified under these circumstances.
Accordingly, Stinson’s Motion for Appointment of Counsel
is DENIED.
5Stinson filed this motion before the case was transferred from
the Southern District of Florida and thus did not file the
required “Declaration of Need by Litigant” required in this
district under Administrative Order 2023-38.
IV. CONCLUSION
For the above reasons, Stinson’s Motion for Refund and
Motion for Appointment of Counsel are both DENIED.
IT IS SO ORDERED.
s/Tu M. Pham
TU M. PHAM
Chief United States Magistrate Judge
December 6, 2024
Date