Short v. Kelly et al

Filing 39

ORDER Overruling Plaintiff's 35 Objections to Magistrate Judge's 34 Order Denying Plaintiff's Renewed Motion for Appointment of Counsel and Affirming Magistrate Judge's Order. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICHARD SHORT,
Plaintiff,

Case No. 13-cv-13246
Hon. Matthew F. Leitman

v.
JOHN KELLY,
Defendant.
_________________________________/
ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO MAGISTRATE
JUDGE’S ORDER DENYING PLAINTIFF’S RENEWED MOTION FOR
APPOINTMENT OF COUNSEL (ECF #35) AND AFFIRMING
MAGISTRATE JUDGE’S ORDER (ECF #34)
Plaintiff Richard Short (“Short”) is an inmate in the custody of the Michigan
Department of Corrections (the “MDOC”). On July 30, 2013, Short filed a civilrights action against, among others, John Kelly, an Assistant Resident Unit
Supervisor at the Central Michigan Correctional Facility (the “CMCF”), where
Short was once incarcerated. (See the “Complaint,” ECF #1.)
On February 11, 2014, Short first moved for the appointment of counsel in
this action. (See ECF #14.) The Magistrate Judge denied Short’s motion without
prejudice. (See ECF #15.) Short objected to this recommendation (see ECF #16),
and the Court overruled the objection. (See ECF #19.)

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On November 20, 2014, Short renewed his motion for appointment of
counsel. (See ECF #31.) In his renewed motion, Short asserts that he needs
counsel appointed for him because certain MDOC policies prevent him from
“searching for, and communicating with, potential and even identified witnesses[,]
creat[ing] an unusual barrier to adequate investigation, preparation and
presentation of his claims.” (Id. at ¶11.) Therefore, according to Short, “[c]ounsel
is required in order to provide [him] with meaningful access to the courts.” (Id. at
¶12.)
The Magistrate Judge has now denied Short’s renewed motion for counsel
without prejudice. (See the “Magistrate Judge’s Order,” ECF #34.) The Magistrate
Judge determined that “[u]pon again reviewing Short’s complaint and other filings
… the Court finds that Short still has not shown exceptional circumstances
meriting the appointment of counsel.” (Id. at 1, Pg. ID 241.) The Magistrate
Judge further concluded that “Short has shown an ability to meaningfully represent
himself in this action, having prevailed in part against the defendants’ motion for
summary judgment.” (Id.) The Magistrate Judge also told Short that “[s]hould
[his] case survive dispositive motion practice and proceed to trial, he may file a
renewed motion for the appointment of counsel at that time.” (Id. at 3, Pg. ID
243.)

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Short filed objections to the Magistrate Judge’s Order on February 18, 2015.
(See the “Objections,” ECF #35.) In the Objections, Short repeats the claims he
made to the Magistrate Judge that his “status as a prisoner” prevents him “from
locating witnesses, conducting depositions, or otherwise engaging in the task of
Discovery.” (Id. at ¶6.) Short also now claims that the MDOC has confiscated
“written statements of current and former employees of the [CMCF]” that could be
useful in prosecuting his case. (Id. at ¶8.) Short further alleges that the MDOC has
confiscated “all [of his] legal property” including “pleadings, exhibits, grievances,
Orders, and research material.” (Id. at ¶13.) As a result, Short claims that “it is
virtually impossible for [him] to have meaningful access to the Court absent
appointed counsel.” (Id. at ¶15.)
The Court has reviewed the Objections and overrules them.

As the

Magistrate Judge properly concluded, “‘[a]ppointment of counsel in a civil case is
not a constitutional right. It is a privilege that is justified only by exceptional
circumstances.’” (Magistrate Judge’s Order at 1, Pg. ID 241 (quoting Lavado v.
Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993)).)

Such “exceptional

circumstances” do not exist here. Indeed, Short has “demonstrated an ability to
clearly articulate his arguments to the Court” (Magistrate Judge’s Order at 2, Pg.
ID 242), and he has previously defeated, in part, a motion for summary judgment.
(See ECF #26.) Simply put, Short has ably represented himself in this action, and

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he has failed to show the exceptional circumstances required to justify the
appointment of counsel at this time.
The Court is, however, very concerned about Short’s allegations in the
Objections that the MDOC is confiscating his legal materials and otherwise
preventing Short from defending himself in this litigation. (See Objections at
¶¶11-14.) While the Court is unwilling to appoint Short counsel at this time, it
does want to ensure that he is able to fully represent himself. Accordingly, the
Court directs Defendant’s counsel, the Office of the Attorney General, to
communicate with the MDOC that, if and to the extent the MDOC has confiscated
Short’s legal materials, those documents should be immediately returned to Short
unless the MDOC has a legitimate and compelling penological interest in
withholding them. If the MDOC has such an interest, Defendant’s counsel shall
explain this interest to both Short and the Court in writing.
Therefore, for all the reasons stated above, IT IS HEREBY ORDERED
THAT (1) Short’s Objections to the Magistrate Judge’s Order (ECF #35) are
overruled; and (2) the Magistrate Judge’s Order denying, without prejudice,
Plaintiff’s Renewed Motion for Appointment of Counsel (ECF #34) is
AFFIRMED.

Dated: April 14, 2015

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on April 14, 2015, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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