Opiyo v. Strickler et al
ORDER striking plaintiff's response to defendants' motion for summary judgment 31 ; denying motion for leave to proceed in forma pauperis 32 ; denying application to proceed in forma pauperis 33 and denying 34 Motion to Appoint Counsel. Signed by District Judge George Caram Steeh (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
FREDERICK O. OPIYO,
Case No. 09-13609
HON. GEORGE CARAM STEEH
DEPUTY H. BOEHM et al.,
ORDER STRIKING PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT (DOC. # 31); DENYING MOTION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS (DOC. # 32); DENYING APPLICATION
TO PROCEED IN FORMA PAUPERIS (DOC. # 33); AND DENYING
MOTION FOR APPOINTMENT OF COUNSEL (DOC. # 34)
The above-captioned case was initiated in 2009 by the filing of a pro se 42
U.S.C. § 1983 complaint by federal prisoner Frederick Opiyo.1 The case has now been
closed for well over two years. Nonetheless, Opiyo has recently filed what appears to
be a new pro se response to the motion for summary judgment filed by defendants in
April 2010 and granted by the court in September 2010. Opiyo has also filed the form
application to proceed in forma pauperis and pro se motions requesting “leave to
proceed in forma pauperis” and “for appointment of counsel.”
The court notes that a limited appearance was filed by counsel for Opiyo, who
filed certain pleadings while the matter was pending.
Opiyo’s claims remaining at the time defendants filed their motion for summary
judgment were dismissed by this court, by its acceptance of the magistrate’s report and
recommendation, for failure to exhaust administrative remedies. As noted above, this
occurred in September 2010. The court noted in its September 2010 order that Opiyo
had failed to lodge any objections to the R & R.
In October 2012, two years after disposition of the case, Opiyo filed a motion for
leave to file objections to the report and recommendation. This court denied that
motion, stating that “[b]ecause the motion does not address plaintiff’s failure to exhaust
administrative remedies, which is fatal to his claims, the court believes an objection
would not change the result in this case.” (Doc. # 30 at 1-2.)2 Now, months after that
order, Opiyo has again sent documents to the court.
This case is closed. Opiyo did not file timely objections to the report and
recommendation, which was accepted by the court more than two and a half years ago,
and did not appeal from the court’s judgment. Accordingly, there is no pending matter
with respect to which the court could even consider the appointment of counsel, and no
reason to consider another application to proceed in forma pauperis (the court notes
Opiyo’s 2009 application to proceed IFP was granted by the court). Accordingly,
It appears that Opiyo’s current filing is, in part, an attempt to respond to that
order. He states that “at least three or more impediments made a timely Exhaustion
absolutely impossible,” and describes his “physical incapacitation,” intimidation, and
label of “snitch” allegedly assigned to him by jail personnel. (Doc. # 31 at 2.) However,
in that very document, Opiyo states that following a letter sent by him to the chief judge
of this court, dated October 12, 2008, in which he requested “security and protection for
fear of retaliation,” he was “immediately transferred...to a federal detention center.” Id.
Opiyo’s attempt to explain his failure to exhaust is thus belied by his acknowledgment
that he was promptly removed from the situation he states he found so intimidating.
Opiyo’s motions to (1) proceed IFP and (2) for appointment of counsel are hereby
DENIED. Additionally, Opiyo’s form application to proceed IFP is DENIED, and his
“response” to defendants’ motion for summary judgment is hereby STRICKEN.
IT IS SO ORDERED.
Dated: May 2, 2013
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 2, 2013, by electronic and/or ordinary mail and also
Frederick O. Opiyo #39194-039, FCI Bastrop, Federal
Correctional Institution, P. O. Box 1010, Bastrop, TX 78602.
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