Fuller v. Kerr, et al

Filing 74

ORDER Conditionally Appointing Counsel. Signed by District Judge Matthew F. Leitman. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THOMAS FULLER,
Plaintiff,

Case No. 13-cv-13171
Hon. Matthew F. Leitman

v.
DAVID KERR et al.,
Defendants.
_________________________________/
ORDER CONDITIONALLY APPOINTING COUNSEL
In 2011, Plaintiff Leroy Fuller (“Fuller”) was a resident of the Tri-County
Community Adjudication Program (“Tri-Cap”). Tri-Cap is a diversion program
that aims to reduce non-violent offender admissions to jail or prison. (See ECF
#48 at 12, Pg. ID 314.) In this action, Fuller alleged that while he was housed at
Tri-Cap, Defendant David Kerr (“Kerr”), a Tri-Cap employee, subjected him to
excessive force and committed assault and battery against him by spraying him
with a de-lousing agent during a contraband check. Fuller also claims that Kerr
and Defendants Gary Davis, Janet Cochran, and John W. Hawley (collectively, the
“Defendants”) violated his Eighth Amendment rights by withholding medical care
and prescription drugs.

The Defendants jointly filed a motion to dismiss and for summary judgment
on December 31, 2014 (the “Motion”).

(See ECF # 48, Pg. ID 303.)

On

September 21, 2015, this Court issued an Order denying the Defendants’ Motion
with respect to Fuller’s excessive force and assault and battery claims against Kerr,
but granted the Motion in all other respects. (See ECF #73 at 1, Pg. ID 863.)
Consequently, Fuller’s surviving excessive force and assault and battery claims
may proceed to a jury trial because the parties genuinely dispute the material facts
regarding these claims. SEC v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 32627 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986)).
Fuller is proceeding pro se in this action. Unlike criminal cases, there is no
constitutional or statutory right to the appointment of counsel in civil cases. See
Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993). However, this District
has a procedure in which cases are referred to a Pro Bono Committee that requests
members of the bar to assist in appropriate cases. This Court believes Fuller would
benefit from the assistance of appointed pro bono counsel in this matter.

Accordingly, this case is referred to the Pro Bono Committee. Fuller is
conditionally granted appointment of counsel provided that the Committee is
successful in enlisting pro bono counsel. If the Committee is unsuccessful, counsel
will not be appointed and Fuller will proceed pro se or retain counsel at his own
expense.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: September 28, 2015

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on September 28, 2015, by electronic means and/or
ordinary mail.
s/Teresa McGovern
in the Absence of Holly Monda
Case Manager
[phone]