Kruebbe v. Gegenheimer
Filing
91
ORDER AND REASONS denying 80 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEFFREY KRUEBBE
CIVIL ACTION
VERSUS
NO: 15-6930
JON GEGENHEIMER ET AL
SECTION: “H”(3)
ORDER AND REASONS
Before the Court is a Notice of Appeal (Doc. 80) regarding the Magistrate
Judge’s order denying Plaintiff’s Motion for Appointment of Counsel. The
Court will construe this filing as a motion for review of the magistrate judge’s
decision. For the following reasons the Motion is DENIED.
BACKGROUND
In this pro se civil rights action, Plaintiff challenges the constitutionality
of Louisiana Revised Statutes § 13:2562.22. He complains that the state court
Judicial Expense Fund, which holds fines assessed by state court judges, is
controlled by these same judges.
1
Mr. Kruebbe was charged with a misdemeanor criminal violation in state
court. When he failed to appear at a court date, Defendant Judge Beevers
found him in contempt, assessed a fine of $150, and issued a writ of attachment
for his arrest. Plaintiff alleges that he was never served with notice to appear
in court. Nevertheless, his mother paid the contempt fee at issue, which was
deposited into the Judicial Expense Fund for the Second Parish Court for the
Parish of Jefferson. Plaintiff challenges the constitutionality of the Judicial
Expense Fund because the judges of the court control the fines they assess,
creating improper bias. He seeks injunctive relief precluding both his criminal
prosecution and further collection of monies into the Judicial Expense Fund.
Additionally, Plaintiff attempted to remove his misdemeanor theft prosecution
to this Court; however, that case was remanded.1
The Magistrate Judge denied Plaintiff’s first Motion to Appoint Counsel
on February 22, 2016 (Doc. 38). Thereafter, Plaintiff filed a second Motion to
Appoint Counsel, which was likewise denied by the Magistrate (Doc. 79).
Plaintiff now appeals the denial of his second Motion to Appoint Counsel.
LEGAL STANDARD
With the consent of the presiding district judge, a magistrate judge may
adjudicate non-dispositive pre-trial motions.2 A magistrate judge is afforded
broad discretion in resolving such motions.3 A party aggrieved by the
magistrate judge’s ruling may appeal to the district judge within fourteen days
after service of the ruling.4 The district judge may reverse only upon a finding
Doc. 20.
28 U.S.C. § 636(b)(1)(A).
3 McCallon v. BP Am. Prod. Co., Nos. 05–0597, C/W 05–0700, 2006 WL 3246886, at
*2 (E.D.La. Nov. 8, 2006).
4 Fed. R. Civ. P. 72(a).
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that the ruling is “clearly erroneous or contrary to law.”5 In order to meet this
high standard, the district judge must be “left with a definite and firm
conviction that a mistake has been committed.”6
LAW AND ANALYSIS
As noted above, Plaintiff seeks review of the Magistrate Judge’s denial
of his second Motion to Appoint Counsel.
The Court has reviewed the
Magistrate’s decision in this matter and concludes that it is neither clearly
erroneous nor contrary to law. As the Magistrate correctly stated, absent
“exceptional circumstances,” an indigent civil rights litigant does not have a
right to appointed counsel.
7
In determining whether such circumstances
exist, a court must look to:
(1) the type and complexity of the case; (2) whether the indigent
litigant is capable of adequately presenting his case; (3) whether
the litigant is in a position to investigate the case adequately; (4)
whether the evidence will consist in large part of conflicting
testimony, thus requiring skill in presentation and crossexamination.8
Following a telephonic hearing on Plaintiff’s first Motion to Appoint Counsel,
the Magistrate Judge determined that such circumstances did not exist, a
finding that this Court finds is amply supported in the record. In denying the
second Motion to Appoint Counsel, the Magistrate found no intervening change
in circumstances since the time Plaintiff’s first motion was decided. The record
before the Court supports this finding. Accordingly, the Motion for Appeal is
denied.
28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a).
Yelton v. PHI, Inc., 284 F.R.D. 374, 376 (E.D.La.2012).
7 Norton v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997).
8 Id.
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3
CONCLUSION
For the forgoing reasons, Plaintiff’s motion for review is DENIED.
New Orleans, Louisiana this 26th day of July, 2016.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
4
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