Dykes v. Winn et al

Filing 33

ORDER DENYING Plaintiff's 24 Motion to Appoint Counsel, Signed by Magistrate Judge Paul J. Komives. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT LEE DYKES (#201541),
CASE NO. 2:13-CV-13813
JUDGE PATRICK J. DUGGAN
MAGISTRATE JUDGE PAUL J. KOMIVES

Plaintiff,
v.
O’BELL T. WINN,
LLOYD RAPELJE,
ROLAND PRICE,
JOSEPH CRAWLEY and
JOHN DOE,
Defendants,
/

ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF’S MARCH 4, 2014 MOTION FOR APPOINTMENT OF COUNSEL
(Doc. Ent. 24)
A.

Plaintiff filed his complaint against five (5) defendants.
Robert Lee Dykes (#201541) is currently incarcerated at the Michigan Department of

Corrections (MDOC) Michigan Reformatory (RMI) in Ionia, Michigan. On September 6, 2013,
while incarcerated at RMI, Dykes filed the instant lawsuit against five (5) defendants, each of the
Saginaw Correctional Facility (SRF): Deputy Warden O. T. Winn, Warden Lloyd W. Rapelje,
Sgt. Price, J. Crawley and an unnamed defendant. Doc. Ent. 1 at 1-10; see also Doc. Ent. 1 at 11
(Index of Exhibits), Doc. Ent. 1 at 12-50 (Exhibits).
The facts underlying plaintiff’s complaint concern the events of September 15, 2011
through November 9, 2011. Doc. Ent. 1 at 6-8. Among plaintiff’s claims are allegations of
failure to protect, false misconduct ticket(s) and an Equal Protection violation. Doc. Ent. 1 at 9-

10. Plaintiff’s prayer for relief seeks an award of compensatory damages and the imposition of
discipline upon defendants. Doc. Ent. 1 at 4-5.
B.

One (1) defendant has been dismissed, leaving three (3) named defendants.
On January 28, 2014, defendants O’Bell T. Winn, Lloyd Rapelje, Roland Price and

Joseph Crawley filed a motion to dismiss. Doc. Ent. 19. Thereafter, I entered a report
recommending that the Court should “conclude that plaintiff has failed to state a claim upon
which relief may be granted with respect to any of the claims asserted in his complaint[,]” and
“grant defendants’ motion to dismiss.” Doc. Ent. 23 at 14.
However, on April 14, 2014, Judge Duggan entered an opinion and order (Doc. Ent. 27)
adopting in part and rejecting in part my March 3, 2014 report and recommendation (Doc. Ent.
23) and granting defendants’ motion to dismiss (Doc. Ent. 19). In summary, Judge Duggan
wrote:
. . . the Court agrees with Magistrate Judge Komives that Plaintiff fails to plead
viable claims against Defendant Lloyd Rapelje and claims alleging violations of
his rights under the Eighth Amendment, First Amendment, and the Due Process
Clause of the Fourteenth Amendment. As such, the Court adopts the magistrate
judge’s recommendation to grant Defendants’ motion to dismiss. In that motion,
however, Defendants do not seek dismissal of Plaintiff’s claim alleging
discrimination in violation of the Equal Protection Clause of the Fourteenth
Amendment. The Court concludes that Plaintiff’s factual allegations with respect
to that claim satisfy Rule 8’s pleading requirements. Therefore Plaintiff’s equal
protection claim is not subject to sua sponte dismissal under 28 U.S.C. § 1915A.
Doc. Ent. 27 at 17-18. As a result, Rapelje was dismissed as a party to this lawsuit. Doc. Ent. 27
at 18.
On April 15, 2014, MDOC defendants O’Bell T. Winn, Roland Price and Joseph Crawley
filed an answer to plaintiff’s complaint, affirmative defenses and jury demand. Doc. Ent. 28.
Plaintiff filed a response to defendants’ answer on April 29, 2014. Doc. Ent. 32.
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C.

Plaintiff’s March 4, 2014 motion for the appointment of counsel is pending.

1.

Judge Duggan has referred this case to me for pretrial matters. Doc. Ent. 30. Currently

before the Court is plaintiff’s March 4, 2014 motion for appointment of counsel. Doc. Ent. 24 at
1 (Motion); see also Doc. Ent. 24 at 2-5 (Brief) & Doc. Ent. 25 at 1-2 (Affidavit).
Plaintiff’s request is based upon 28 U.S.C. § 1915 (“Proceedings in forma pauperis”),
which provides in part that “[t]he court may request an attorney to represent any person unable to
afford counsel.” 28 U.S.C. § 1915(e)(1). 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, 605-606 (6th Cir. 1993) (internal quotations and citations
omitted).
“In determining whether an indigent litigant is in need of appointed counsel, a number of
factors are relevant including: the factual complexity of the case, the ability of the indigent to
investigate the facts, the existence of conflicting testimony, the ability of the indigent to present
his claim and the complexity of the legal issues.” Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th
Cir. 1991) (citing Johnson v. Williams, 788 F.2d 1319, 1322-1323 (8th Cir.1986)). The Court
might also consider the merits of the case. See, i.e., Cooper v. A. Sargenti Co., Inc., 877 F.2d
170, 172 (2d Cir. 1989) (“the criteria to be used in making the decision included the merits of
plaintiff's case, the plaintiff's ability to pay for private counsel, his efforts to obtain a lawyer, the
availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if
unassisted by counsel.”) (citing Jenkins v. Chemical Bank, 721 F.2d 876 (2d Cir. 1983)); Rucks

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v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (“We recently reiterated the factors to be
considered in deciding whether to appoint counsel, including ‘the merits of the litigant's claims,
the nature of the factual issues raised in the claims, the litigant's ability to present his claims, and
the complexity of the legal issues raised by the claims.’) (citing Williams v. Meese, 926 F.2d
994, 996 (10th Cir.1991)).
2.

Among the claims plaintiff makes in his March 4, 2014 motion is the statement that RMI

“limits the hours that [he] may have access to . . . the law library, and the law materials
contained [at RMI] are inadequate[] and limited.” Doc. Ent. 24 at 1 ¶ 3. Similarly, plaintiff’s
March 4, 2014 affidavit states:
The Plaintiff is only allowed a certain amount of law library time, and the library
itself is inadequate for the type of research needed for this case, also the Plaintiff
does not have the means to locate the necessary witnesses.
Doc. Ent. 25 at 2 ¶ 9; see also Doc. Ent. 24 at 4 ¶ 3 (“law library time is limited to three (3) days
a week, and the library is inadequate.”). Furthermore, plaintiff attests that he “only has a G.E.D.
and no legal education.” Doc. Ent. 25 at 2 ¶ 8.
Then, within his March 4, 2014 brief, plaintiff discusses (1) factual complexity, (2) his
ability to properly investigate, (3) his ability to present his claim, (4) legal complexity and (5)
the merit of his case. Doc. Ent. 24 at 3-5. For example, citing among other cases Tucker v.
Randall, 948 F.2d 388, 391-392 (7th Cir. 1991),1 plaintiff notes that he “has been transferred and
no longer resides at the institution where the incident took place[.]” Doc. Ent. 24 at 4 ¶ 2. Also,

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“[P]laintiff is unable to investigate crucial facts because he currently is incarcerated in a
facility different from that in which the alleged conduct took place.” Tucker, 948 F.2d at 391.
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citing Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984),2 plaintiff claims he “is an indigent
prisoner with no legal training[.]” Doc. Ent. 24 at 4 ¶ 3.
3.

In addition to the matters plaintiff filed on March 4, 2014 (Doc. Entries 24 & 25),

plaintiff has offered other filings on his own behalf. For example, he has filed his complaint
(Doc. Ent. 1); his application to proceed without prepaying fees or costs (Doc. Ent. 2), which
was granted by this Court (Doc. Ent. 7); a motion for reconsideration (Doc. Ent. 5), which was
granted by this Court (Doc. Ent. 6); a motion requesting clarification (Doc. Ent. 12), which was
denied by this Court (Doc. Ent. 13); a response (Doc. Ent. 22) to defendants’ motion to dismiss
(Doc. Ent. 19); an objection (Doc. Ent. 26) to my report and recommendation (Doc. Ent. 23),
which objection was considered by the Court in its April 14, 2014 order (see Doc. Ent. 27 at 34); and a response (Doc. Ent. 32) to defendants’ answer (Doc. Ent. 28) to the complaint (Doc.
Ent. 1).
4.

Having considered plaintiff’s filings to date, I conclude that plaintiff is doing an adequate

job representing himself at this time. This conclusion is buttressed by the Court’s April 14, 2014
decision that plaintiff’s equal protection claim “is not subject to sua sponte dismissal under 28
U.S.C. § 1915A.” Doc. Ent. 27 at 18.
Therefore, plaintiff’s March 4, 2014 motion for the appointment of counsel (Doc. Ent.
24) is denied without prejudice. Plaintiff may renew his request if his case survives a Fed. R.

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“[I]t is an abuse of discretion to decline to appoint counsel where the case of an indigent
plaintiff presents exceptional circumstances.” Whisenant, 739 F.2d at 163 (citing cases). “If it is
apparent to the district court that a pro se litigant has a colorable claim but lacks the capacity to
present it, the district court should appoint counsel to assist him.” Id.
However, in Mallard v. U.S. Dist. Court for Southern Dist. of Iowa, 420 U.S. 296 (1989),
the Supreme Court held that Ҥ 1915(d) does not authorize the federal courts to make coercive
appointments of counsel.” Mallard, 490 U.S. at 310.
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Civ. P. 56 motion for summary judgment or if other circumstances warranting the appointment
of counsel arise.
D.

Order
Accordingly, plaintiff’s March 4, 2014 motion for appointment of counsel (Doc. Ent. 24)

is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a period of
fourteen (14) days from the date of service of a copy of this order within which to file an appeal
for consideration by the district judge under 28 U.S.C. § 636(b)(1).

Dated: May 7, 2014

s/Paul J. Komives
PAUL J. KOMIVES
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record on May 7,
2014, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Paul J. Komives

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