Baze v. Huddleston et al

Filing 51

MEMORANDUM & ORDER denying 29 Motion to Appoint Counsel ; denying 32 Motion for final adjudication; granting 33 Motion for Extension of Time to File; denying 37 Motion for law library to make copies of documents ; denying 44 Motion to hold proceeding in abeyance. Signed by Chief Judge Thomas B. Russell on 5/13/2011. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:10CV-P86-R
RALPH BAZE

PLAINTIFF

v.
HOBERT HUDDLESTON et al.

DEFENDANTS

MEMORANDUM AND ORDER
This matter is before the Court on several motions filed by Plaintiff. Each is addressed
below.
1) Motion “for final adjudication” on a previously filed motion for reconsideration
(DN 32). Plaintiff claims that he previously filed a motion for reconsideration that has yet to be
ruled upon, and therefore, seeks a ruling. The record reveals, however, that the Court denied
Plaintiff’s motion for reconsideration a month prior to Plaintiff’s filing of the instant motion. IT
IS THEREFORE ORDERED that the motion “for final adjudication” (DN 32) is DENIED.
Because it appears that Plaintiff did not receive a copy of the Court’s February 11, 2011,
Memorandum Opinion and Order denying the motion for reconsideration, the Clerk of Court is
DIRECTED to send Plaintiff a copy of that document (DN 25).
2) Motion for appointment of counsel (DN 29). In a civil case, appointment of counsel
is not a constitutional right. Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993). Courtenlisted assistance of counsel is not mandatory but merely a matter of discretion. See 28 U.S.C.
§ 1915(e)(1) (“The court may request an attorney to represent any person unable to afford
counsel.” (emphasis added); Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987). “‘It is a
privilege that is justified only by exceptional circumstances.’” Lavado v. Keohane, 992 F.2d at

606 (quoting Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985)). “In determining whether
‘exceptional circumstances’ exist, courts have examined ‘the type of case and the abilities of the
plaintiff to represent himself.’ This generally involves a determination of the ‘complexity of the
factual and legal issues involved.’” Id. (citations omitted).
The Court finds that the complexity of the issues in this case does not necessitate the
appointment of counsel. Further, based on a review of Plaintiff’s numerous filings, which the
Court is easily able to understand, Plaintiff is articulate and able to represent himself sufficiently.
Consequently, the Court finds that Plaintiff has not set forth any “exceptional circumstances”
warranting appointment of counsel at this time. Accordingly, IT IS ORDERED that the motion
for appointment of counsel (DN 29) is DENIED.
3) Motion for order requiring the prison law library to make copies of all legal
documents and exhibits (DN 37). Plaintiff reports that prison staff refused to copy one of his
exhibits, a newspaper article; withheld a typewriter ribbon for a week knowing that he had court
deadlines; and lost/destroyed about 5,000 pages of legal documents. He states that he has to mail
some exhibits to his family to make copies. He thus asks the Court to direct Kentucky State
Penitentiary Warden Philip Parker to allow him to have copies made of anything that he wants to
use as an exhibit.
Defendants respond that Plaintiff supports his motion by attaching a copy of the
newspaper article that he asserts he was prevented from having copied; that he complains about
his inability to file documents in the midst of filing a flurry of documents, including documents
supported by exhibits apparently copied in the prison law library; that if he was not permitted to
copy the newspaper story in question, it was because “it is entirely unrelated to this case and
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they do not usually allow copying on non-legal material ‘unless it is attached to a motion to
prevent abuse’”; and that KSP officials seem unaware of the allegedly lost or destroyed
documents. Defendants state that KSP officials have no intention of interfering with Plaintiff’s
litigation in any of his cases.
Plaintiff filed a reply alleging that Defendants made false and misleading statements in
their response. He claims that while he now has a copy of the article at issue, which he received
“from an outside source,” he has not tried since that time to have a news article copied. With
respect to his allegation of lost or destroyed property, Plaintiff explains that he was taken to
segregation, and property officers packed his property for storage while he was in segregation.
He claims that upon release from segregation, a case of legal documents was not among his
returned property. He reports that a property officer told him they were misplaced and that he
would find them but that a week later, the property officer admitted he could not find them. He
admits that the replacement ribbon issue has been corrected.
Plaintiff is effectively asking for preliminary injunctive relief. “A preliminary injunction
is an extraordinary remedy which should be granted only if the movant carries his or her burden
of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban
County Gov’t., 305 F.3d 566, 573 (6th Cir. 2002). “There are four factors that are particularly
important in determining whether a preliminary injunction is proper.” Int’l Longshoremen’s
Ass’n, AFL-CIO, Local Union No. 1937 v. Norfolk S. Corp., 927 F.2d 900, 903 (6th Cir. 1991).
(1) whether the movant has a strong likelihood of success on the merits; (2) whether
the movant would suffer irreparable injury without the injunction; (3) whether
issuance of the injunction would cause substantial harm to others; and (4) whether
the public interest would be served by issuance of the injunction.

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Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2005).
While Plaintiff has a constitutional right to “meaningful access to the courts,” Bounds v.
Smith, 430 U.S. 817, 824 (1977), he must show “actual injury.” Lewis v. Casey, 518 U.S. 343,
349 (1996). No actual injury occurs without a showing that a claim “has been lost or rejected, or
that the presentation of such a claim is currently being prevented.” Id. at 356. Moreover, the
underlying action must have asserted a non-frivolous claim. Id. at 352-53. Plaintiff has not
alleged that a non-frivolous claim has been lost/rejected or currently is being prevented due to
his lost/destroyed papers or prison staff’s refusal to photocopy a news article. Additionally,
“since prisoners are not prejudiced by the filing of handwritten documents, there is no
constitutional right to typewriters.” Kendrick v. Bland, 586 F. Supp. 1536, 1554 (W.D. Ky.
1984). Thus, Plaintiff’s delay in receipt of typewriter ribbon is of no legal significance.
Additionally, Plaintiff does not show irreparable injury, as the allegations about which he
complains occurred in the past.
For these reasons, IT IS ORDERED that the motion for order requiring the prison law
library to make copies of all legal documents and exhibits (DN 37) is DENIED.
4) Motion for an extension of time in which to file a pretrial memorandum (DN 33).
Upon consideration, IT IS ORDERED that the motion (DN 33) is GRANTED. Plaintiff shall
have 30 days from the date of entry of this Order in which to file his pretrial memorandum.

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5) Motion to hold proceeding in abeyance until the Court rules on pending motions
(DN 44). As all pending motions have been ruled upon, IT IS ORDERED that the motion
(DN 44) is DENIED as moot.
Date:

May 13, 2011

cc:

Plaintiff, pro se
Counsel of record
4413.005

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