Thomas v. Weisand et al

Filing 5

ORDER Denying 3 Application for Appointment of Counsel filed by Rodney Thomas, 2 Application to Proceed In Forma Pauperis and Dismissing Complaint filed by Rodney Thomas Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RODNEY THOMAS,
Plaintiff,
Case No. 13-10052
Hon. Lawrence P. Zatkoff

v.
ROBERT WEISAND, et al.,
Defendants.
/

OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on March 8, 2013
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff submitted his pro se complaint [dkt 1], application to proceed in forma pauperis [dkt
2], and application for appointment of counsel [dkt 3] on January 7, 2013. For the following
reasons, Plaintiff’s request to proceed in forma pauperis is DENIED, Plaintiff’s application for
appointment of counsel is DENIED, and Plaintiff’s pro se complaint is DISMISSED.
II. ANALYSIS
A. Plaintiff’s Request to Proceed In Forma Pauperis
Plaintiff has filed an application to proceed without prepayment of fees. Under 28 U.S.C.
§ 1915(a), “any court of the United States may authorize the commencement, prosecution or defense
of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person

who submits an affidavit that includes a statement of all assets such prisoner possesses that the
person is unable to pay such fees or give security therefor.” The reference to assets of “such
prisoner” is likely a typographical error; thus, § 1915(a) applies to all natural persons. See Floyd
v. U.S. Postal Serv., 105 F.3d 274 (6th Cir. 1997). If a motion to proceed without prepayment of
fees is filed and accompanied by a facially-sufficient affidavit, the Court should allow the complaint
to be filed. See Gibson v. R.G. Smith Co., 915 F.2d 260, 261 (6th Cir. 1990) (citing Phillips v.
Carey, 638 F.2d 207, 208 (10th Cir. 1981)). Only after the complaint is filed is it tested to determine
whether it is frivolous or fails to state a claim. See id. at 261. The Court has reviewed Plaintiff’s
application and has determined that he is not entitled to proceed in forma pauperis. The financial
information in the application does not indicate that Plaintiff is unable to pay the filing fee;1
therefore, the Court DENIES Plaintiff’s application to proceed in forma pauperis [dkt 2].
B. Application for Appointment of Counsel
Plaintiff has also requested that the Court appoint counsel on his behalf. “Appointment of
counsel in a civil case is not a constitutional right. It is a privilege that is justified only by
exceptional circumstances.” Lavado v. Keohane, 992 F.2d 601, 605–06 (6th Cir. 1993) (citations
omitted). Plaintiff has not shown that exceptional circumstances warranting the appointment of
counsel exist in this case. Therefore, Plaintiff’s application for appointment of counsel [dkt 3] is
DENIED.

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Plaintiff indicated in his application that he received money from Total Experience
Auto Detailing within the last 12 months. Yet, when asked the amount, Plaintiff answered “?”.
The Court will not speculate the amount Plaintiff received and, therefore, denies his application
to proceed in forma pauperis .
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C. Review of Plaintiff’s Complaint
Upon considering a plaintiff’s request to proceed in forma pauperis, the Court performs a
preliminary screening of the complaint under several provisions of the United States Code. Pursuant
to 28 U.S.C. §§ 1915A, 1915(e), and 42 U.S.C. § 1997e(c)(1), the Court is to sua sponte dismiss the
case before service on Defendant if it determines that the action is frivolous or malicious, fails to
state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is
immune from such relief.
The Court has a duty to construe a pro se plaintiff’s pleadings liberally, see, e.g., Haines v.
Kerner, 404 U.S. 519 (1972), but in doing so, it will not re-write a deficient complaint or otherwise
serve as counsel for that plaintiff. See GJR Invs, Inc. v. County of Escambia, Fla., 132 F.3d 1359,
1369 (11th Cir. 1998). Construing Plaintiff’s complaint liberally, the Court finds Plaintiff’s
complaint has failed to state a claim upon which relief may be granted.
Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of 1964 for
employment discrimination. Yet, Plaintiff fails to attach to the complaint a statement of the facts
that provides a context surrounding his alleged discrimination. As such, Plaintiff does not allege
the factual elements of a discrimination claim or, for that matter, on what basis he was discriminated
against. Plaintiff’s complaint, therefore, fails to adequately state a claim upon which relief may be
granted.
III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request to proceed in forma
pauperis [dkt 2] is DENIED.

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IT IS FURTHER ORDERED that Plaintiff’s application for appointment of counsel [dkt 3]
is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s complaint [dkt 1] is DISMISSED WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1915(e).
IT IS SO ORDERED.

S/Lawrence P. Zatkoff
HON. LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE

Dated: March 8, 2013

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