MAESTREY v. JOHNSON et al

Filing 86

ORDER DENYING 85 Motion to Appoint Counsel / Motion for Reconsideration. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 10/25/2019. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MICHAEL ALFRED MAESTREY,

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Plaintiff,
v.
GLEN JOHNSON, et al.,

Defendants.

CASE NO. 5:17-CV-68 (MTT)

ORDER
Plaintiff Michael Alfred Maestrey moves for appointment of counsel and for
reconsideration of the Court’s July 26, 2019 Order (Doc. 65). Doc. 85. These motions
(Doc. 85) are DENIED.
I.

APPOINTMENT OF COUNSEL
There is no constitutional right to counsel in a 42 U.S.C. § 1983 lawsuit. Poole v.

Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). Only if exceptional circumstances exist
should the court appoint counsel. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982).
There are no such exceptional circumstances in this case.
Maestrey filed an original (Doc. 1) and, in accordance with the Magistrate
Judge’s instructions (Doc. 10), a recast § 1983 pro se complaint (Doc. 12). The facts
stated in his recast complaint are not complicated, and the laws governing Maestrey’s
claims are neither novel nor complex. The recast complaint demonstrates that
Maestrey is able to articulate his claims and that he has a basic understanding of the
law. Additionally, the issues in his case have been narrowed and only three

Defendants—Bryson, Dozier, and Johnson—remain in the action. Docs. 65, 78. The
only remaining issues are Plaintiff’s religious freedom claim against Defendants Bryson,
Dozier, and Johnson, which is limited to nominal damages, and his claim for injunctive
relief against Dozier. Doc. 65. The Court finds that the essential facts and legal
doctrines in this case are ascertainable by Maestrey without the assistance of an
attorney. Maestrey’s motion for the appointment of counsel is accordingly DENIED.
II.

RECONSIDERATION
Maestrey requests the Court to reconsider its July 26,2019 Order (Doc. 65) to the

extent that it adopted the United States Magistrate Judge’s recommendation (Doc. 57)
to dismiss his failure to protect claim against Defendants McClain, Johnson, Dozier, and
Bryson. Doc. 85 at 1, 4. “Although the Federal Rules of Civil Procedure do not
specifically provide for the filing of motions for reconsideration, a district court has the
discretion to reconsider interlocutory orders and revise or amend them at any time prior
to final judgment.” McCoy v. Macon Water Auth., 966 F. Supp. 1209, 1222 (M. D. Ga.
1997). The “Court will grant a motion for reconsideration of an interlocutory order only
if the movant demonstrates there has been an intervening change in the law, that new
evidence has been discovered which was not previously available to the parties in the
exercise of due diligence, or that the court made a clear error of law.” Id. at 1222-23.
None of those factors are present in this case.
In his motion for reconsideration (Doc. 85), Maestrey refers the Court to a
“Declaration of Michael Maestrey, Plaintiff, and Statement of Actual Physical Injuries”
that he filed on September 12, 2019. Doc. 83. In this declaration, Maestrey indicates
that on May 5, 2019, he suffered “physical injuries to his person by way of two cuts to

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his left wrist, and an overdose of prescription med[ication] . . . by consuming 24 to 26
pills at one time due to a plot/plan orchestrated by Unit Manager Michael Williams
(Wilcox State Prison)” and inmates a Wilcox State Prison. Doc. 83 at 1-2. He states he
was then transferred to Johnson State Prison, and on August 26, 2019, his cell mate
attacked him. Doc. 83 at 4. Maestrey alleges that Williams and various prison officials
or employees at Johnson State Prison failed to protect him.
These allegations provide no basis for the Court to reconsider its decision to
dismiss the failure to protect claims against Dooly State Prison Warden Johnson, Dooly
State Prion Unit Manager McClain, former Commissioners of the Georgia Department of
Corrections Dozier and Bryson. Maestrey’s current allegations simply have no
connection to these Defendants.
Should Maestrey wish to file a complaint against the individuals he names in his
declaration, he will need to exhaust administrative remedies and file a separate 42
U.S.C. § 1983 action naming those individuals and telling the Court exactly how they
failed to protect him.
Accordingly, the motion for reconsideration (Doc. 85) is DENIED.
SO ORDERED, this 25th day of October, 2019.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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