Christian v. Ducatt et al

Filing 55

ORDER DENYING without prejudice Plaintiff's 36 Motion to Appoint Counsel--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AUBREY CHRISTIAN,
Plaintiff,
v.

Case No. 2:13-cv-13931
Judge Stephen J. Murphy, III
Magistrate Judge Anthony P. Patti

DANIEL L. DUCATT, et al.
Defendants.
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S AUGUST 20,
2014 MOTION REQUESTING APPOINTMENT OF COUNSEL (DE 36)
A.

Procedural Background
This matter is before the Court for consideration of Plaintiff’s Motion

Requesting Appointment of Counsel. DE 36. Plaintiff, Aubrey Lee Christian, is a
state prisoner who is proceeding without the assistance of counsel. He filed his
Complaint on September 13, 2013 (DE 1), asserting violations of the Eighth
Amendment to the United States Constitution. During the times relevant to his
Complaint, he was incarcerated in various facilities of the Michigan Department of
Corrections.
On August 20, 2014 Plaintiff filed the subject Motion. He contends that he
has written to multiple attorneys seeking counsel in this case and that no attorney
has been willing to accept the case pro bono. He accordingly asks the Court to

appoint counsel for him. His motion does not specifically allege that he is unable
to afford counsel, although he repeatedly characterizes himself as indigent.
B.

Discussion
Plaintiff’s request for the appointment of counsel is governed by 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).
For the following reasons, Plaintiff’s Motion for Appointment of Counsel
will be denied. DE 36. First, this case is still young, at least from a procedural
standpoint. Plaintiff is in the process of seeking to amend his Complaint, and
several defendants have yet to be served. Motion practice, including dispositive
motion practice, is likely to be extensive in this case, given the number of parties
and facilities involved, and the extensive pleadings. The Court believes that it is
premature to appoint counsel at this time, even if Plaintiff is indigent. If this case

should survive dispositive motion practice and proceed toward trial, the Court
would be willing to again entertain the possibility of seeking the appointment of
pro bono counsel.
Second, on several occasions, Plaintiff has illustrated his ability to
adequately communicate his requests to this Court. The Court notes that Plaintiff
has eight pending motions (DE ## 26, 28, 35, 36, 43, 44, 52 and 53). The
Complaint (DE #1) consists of 112 typed pages and 90 paragraphs, and the
proposed amended complaint (DE #29) consists of 123 typed pages and 201
paragraphs, not including the relief requested in each. The instant Motion (DE
#36) is supported by an extensive, intelligent, logical and comprehensive brief,
which appears to be substantially compliant with the Rules of Civil Procedure and
the local rules, including, inter alia, one and a half pages of alphabetized legal
citations and a succinct analysis of the factors to be considered by a court in
deciding a motion of this nature. His motion practice before the Court
demonstrates that he has access to legal research. Accordingly, the Court
concludes that the plaintiff, despite being a prisoner with no legal training,
demonstrates a somewhat heightened and perhaps impressive ability to represent
himself. Although Plaintiff indicates that the factual complexity of the case weighs
in favor of appointment of counsel, his extensive pleadings and proposed pleadings
demonstrate what appear to be his command of an extensive set of facts.

Moreover, while Plaintiff argues that the legal complexity of his case favors the
appointment of counsel, the Court notes that the crux of the matter appears to fall
under a single legal theory of alleged 8th Amendment violations.
C.

Order
Upon consideration, Plaintiff’s Motion for Appointment of Counsel (DE 36)

is DENIED WITHOUT PREJUDICE. Plaintiff may renew his request for the
appointment of counsel if this case survives dispositive motion practice, proceeds
to trial and/or if other circumstances warranting the appointment of counsel arise.
IT IS SO ORDERED.

Dated: February 10, 2015

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record
on February 10, 2015, electronically and/or by U.S. Mail.

s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
[phone]