MILLER v. PRIMUS

Filing 76

ORDER adopting 68 Report and Recommendations; denying 38 Motion for Summary Judgment and denying 75 Plaintiff's Motion for Appointment of Counsel. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 04/25/2019. (chc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ERIC J. Miller,
Plaintiff,
v.

CIVIL ACTION NO.
5:18-cv-00093-TES-MSH

CO II KENNETH PRIMUS,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION

Before the Court is the Magistrate Judge’s Order and Recommendation [Doc. 68]
on Plaintiff’s Motions to Appoint Counsel [Docs. 29 & 46]; Motion for Settlement [Doc.
31]; Motions to Compel Discovery [Docs. 36, 47, 54 & 55]; Motion to Quash [Doc. 37] and
Motion for Summary Judgment [Doc. 38]. The Magistrate Judge denied these motions
and recommended that the Court deny Plaintiff’s Motion for Summary Judgment. See
generally [Doc. 68]. With regard to Plaintiff’s Motion for Summary Judgment, the
Magistrate Judge concluded that there was a dispute over an issue of material fact that
precluded summary judgment. See [Id. at pp. 6–8]. Plaintiff objected to this
recommendation and the Magistrate Judge’s denial of his Motions to Appoint Counsel.
See generally [Doc. 75]. Because the Magistrate Judge fully disposed of Plaintiff’s Motions
to Appoint Counsel, the Court construes this objection as a new Motion to Appoint

Counsel which the Court DENIES.
Having thoroughly reviewed the Magistrate Judge’s recommendation and
Plaintiff’s objection, the Court ADOPTS the Magistrate Judge’s Recommendation [Doc.
68] over Plaintiff’s objection and MAKES IT THE ORDER OF THE COURT. The Court,
therefore, DENIES Plaintiff’s Motion for Summary Judgment [Doc. 38].
DISCUSSION
As noted above, Plaintiff raised two distinct issues in his objection to the
Magistrate Judge’s Order and Recommendation. First, Plaintiff argues that the Magistrate
Judge erred by not considering several factors that are relevant to determine whether an
officer used excessive force against a prisoner in violation of the Eighth Amendment. See
[Doc. 75, at pp. 2–5]. Second, Plaintiff argued that the Magistrate Judge erred in denying
his Motions to Appoint Counsel. [Id. at pp. 5–6].
A.

Motion for Summary Judgment

The Magistrate Judge did not err in recommending that the Court deny Plaintiff’s
Motion for Summary Judgment. Summary judgment is not appropriate where there is a
dispute over a material issue of fact. See Fed. R. Civ. P. 56(a). Here, there are disputed,
material facts as to both of Plaintiff’s claims. With regard to his excessive force claim, the
parties dispute whether the force was reasonable under the circumstances. Compare [Doc.
38-2] (asserting that Defendant repeatedly slammed flap on Plaintiff’s arm) with [Doc. 53,
at ¶ 5] (asserting that Defendant dropped flap on Plaintiff’s arm one time to regain control
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and prevent further attacks from Plaintiff). The parties also dispute whether the tray flap
actually caused Plaintiff’s injuries. Compare [Doc. 38-2, at ¶ 3] with [Doc. 53, at ¶ 8]. With
regard to Plaintiff’s deliberate indifference claim, there is a dispute over how long the
delay in treatment was after Defendant closed the flap on Plaintiff’s arm. Compare [Doc.
38-2, at ¶ 5] with [Doc. 53, at ¶ 7]. These disputed facts may only be resolved by a jury.
Notwithstanding the existence of these disputed facts, Plaintiff argues that the
Magistrate Judge erred by not considering five factors relevant to determining whether
an officer used excessive force against a prisoner. See [Doc. 75, at p. 2] (citing Whitley v.
Albers, 475 U.S. 312, 321 (1986)). While Plaintiff is correct that these factors are relevant to
the Court’s final determination on whether Defendant used excessive force, the Court
cannot apply these factors to facts that are still in dispute. Consequently, the Magistrate
Judge did not err when he recommended that the Court deny Plaintiff’s Motion for
Summary Judgment.
B.

Motion to Appoint Counsel

Because the Magistrate Judge had the authority to fully dispose of Plaintiff’s
Motions to Appoint Counsel, the Court construes Plaintiff’s objection to the Magistrate
Judge’s treatment of his prior Motions to Appoint Counsel as a new Motion to Appoint
Counsel. The Court denies this motion. “A civil litigant, including a prisoner pursuing a
section 1983 action, has no absolute constitutional right to the appointment of counsel.”
Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). Plaintiff argues that 28 U.S.C. §
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1915(e)(1) requires the Court to appoint counsel when an individual proceeding in forma
pauperis is unable to afford counsel. [Doc. 75, at pp. 5–6]. But that is not what the statute
says. The clear language of 28 U.S.C. § 1915(e)(1) establishes that the Court may appoint
counsel if a plaintiff cannot afford counsel. The confusion—to the extent it may fairly be
called confusion—arises from Plaintiff’s alteration of the statute’s language when he
quotes the statute in his objection. Specifically, Plaintiff changed the “may” in the statute
to “shall.” Compare [Doc. 75, at pp. 5–6] (“Pursuant to 28 U.S.C. § 1915(e)(1) ‘The court
[shall] . . . .’” (alteration in Plaintiff’s submission) with 28 U.S.C. § 1915(e)(1) (“The court
may request an attorney to represent any person unable to afford counsel.”) (emphasis
added).
As Plaintiff offered no “exceptional circumstances” justifying the appointment of
counsel, the Court denies Plaintiff’s Motion for Appointment of Counsel. Wahl v. McIver,
773 F.2d 1169, 1174 (11th Cir. 1985).
CONCLUSION
For the reasons stated above, the Court ADOPTS the Magistrate Judge’s
Recommendation [Doc. 68] with regard to Plaintiff’s Motion for Summary Judgment
[Doc. 38]. Consequently, the Court DENIES Plaintiff’s Motion for Summary Judgment.

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The Court also DENIES Plaintiff’s Motion for Appointment of Counsel [Doc. 75] because
he offered no exceptional circumstances justifying the appointment of counsel.
SO ORDERED this 25th day of April, 2019.

S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

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