Olivares v. Yaroch et al

Filing 47

ORDER denying 30 Motion to Appoint Counsel ; terminating 43 Motion for Sanctions; and denying 44 Motion to Strike - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH OLIVARES,
Plaintiff,

CIVIL ACTION NO. 13-CV-12982

vs.
DISTRICT JUDGE VICTORIA A. ROBERTS
BETH YAROCH, et al.,

MAGISTRATE JUDGE MONA K. MAJZOUB

Defendants.
___________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL
(DOCKET NO. 30), TERMINATING PLAINTIFF’S VERIFIED SUPPLEMENTAL
COMPLAINT AND DENYING PLAINTIFF’S MOTION FOR SANCTIONS (DOCKET
NO. 43), AND TERMINATING DEFENDANTS’ MOTION TO STRIKE
(DOCKET NO. 44)
This matter comes before the Court on several motions. The first motion is Plaintiff’s motion
for appointment of counsel. (Docket no. 30). Defendants did not file a response to the motion. The
second motion is entitled “Plaintiff’s Verified Supplemental Complaint for Damages and Motion
for Sanctions.”

(Docket no. 43).

Defendants filed a motion to strike Plaintiff’s Verified

Supplemental Complaint and Motion for Sanctions. (Docket no. 44). Plaintiff has not had an
opportunity to file a brief in response to Defendants’ motion to strike. However, because Plaintiff’s
Verified Supplemental Complaint does not conform to the Federal Rules, the Court will address the
Supplemental Complaint and Defendants’ motion to strike same without awaiting further briefing.
All pretrial matters have been referred to the undersigned for action. (Docket no. 7). The Court
dispenses with oral argument on the motions pursuant to E.D. Mich. LR 7.1(f). The Court is now
ready to rule on the motions pursuant to 28 U.S.C. § 636(b)(1)(A).

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Plaintiff moves for appointment of counsel “to properly investigate further statutory
violations as to the notice of termination filed by Defendants to permanently remove Plaintiff from
public housing.” (Docket no. 30). Plaintiff is proceeding pro se but he has not moved for leave to
proceed in forma pauperis.
“[A]ppointment of counsel in a civil case is . . . a matter within the discretion of the court.”
Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987) (citation omitted). The Sixth Circuit has
stated:
Appointment of counsel in a civil case is not a constitutional right. It is a privilege
that is justified only by exceptional circumstances. 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.
Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (internal citations and quotation marks
omitted). “Appointment of counsel ... is not appropriate when a pro se litigant’s claims are frivolous
... or when the chances of success are extremely slim.” Id. at 606 (citations omitted). Appointment
of counsel is a privilege reserved for those litigants who are unable to afford counsel. Id. at 604.
After considering the proper factors, the Court concludes that the appointment of counsel for
Plaintiff in this action at this time is not warranted. The issues presented in this case are not
unusually complex. Accordingly, Plaintiff's motion for appointment of counsel will be denied.
Next, Plaintiff has filed a document entitled “Plaintiff’s Verified Supplemental Complaint
for Damages and Motion for Sanctions.” (Docket no. 43). The Verified Supplemental Complaint
sets forth allegations against Defendants and requests sanctions against Defendants and their
attorney for violation of various state statutes, the majority of which were not specifically
enumerated in the original complaint. Defendants have filed a motion to strike this document.

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(Docket no. 44).
Federal Rule of Civil Procedure 15(d) states that a party may move for leave to file a
supplemental pleading setting out any transaction, occurrence, or event that happened after the date
of the pleading to be supplemented. Likewise, at this stage in the proceedings Plaintiff may amend
his complaint under Federal Rule of Civil Procedure 15(a) only with Defendants’ written permission
or the court’s leave.
Plaintiff did not file a motion for leave to file the Verified Supplemental Complaint, nor did
he obtain Defendants’ written permission to amend the complaint. The Court will deny Plaintiff’s
motion for sanctions and will terminate Plaintiff’s Verified Supplemental Complaint because it was
filed in violation of Federal Rule of Civil Procedure 15. The Court will terminate Defendants’
motion to strike in light of the above.
IT IS THEREFORE ORDERED that Plaintiff’s motion for appointment of counsel (docket
no. 30) is DENIED.
IT IS FURTHER ORDERED that “Plaintiff’s Verified Supplemental Complaint for
Damages and Motion for Sanctions” (docket no. 43) is DENIED as to its request for sanctions and
TERMINATED to the extent it operates as a Verified Supplemental Complaint.
IT IS FURTHER ORDERED that Defendants’ motion to strike Plaintiff’s Verified
Supplemental Complaint for Damages and Motion for Sanctions (docket no. 44) is terminated.

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NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of
this Order within which to file any written appeal to the District Judge as may be permissible under
28 U.S.C. § 636(b)(1).
Dated: March 13, 2014

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Joseph Olivares and Counsel of
Record on this date.

Dated: March 13, 2014

s/ L. Bartlett
Case Manager

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