White v. Jindal et al

Filing 133

ORDER Granting 126 Motion to Withdraw as Counsel for the Plaintiff; Denying 128 Motion to Re-File Motion to Amend Complaint and Response to Counsel's Motion to Withdraw, and 128 Taking Judicial Notice of Evidence Presented for In Camera Review - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK WHITE,
Plaintiff,
vs.

CIVIL ACTION NO. 13-15073
DISTRICT JUDGE AVERN COHN
MAGISTRATE JUDGE MONA K. MAJZOUB

ROSILYN JINDAL, et al.,
Defendants.
___________________________________________/
ORDER GRANTING PLAINITFF’S COUNSEL’S MOTION FOR WITHDRAW [126],
DENYING PLAINTIFF’S MOTION TO RE-FILE MOTION TO AMEND COMPLAINT
AND RESPONSE TO COUNSEL’S MOTION TO WITHDRAW [128] AND TAKING
JUDICIAL NOTICE OF EVIDENCE PRESENTED FOR IN CAMERA REVIEW
I.

Background
Plaintiff Mark White, currently a prisoner at the Lakeland Correctional Facility, in

Coldwater, Michigan, filed this action under 42 U.S.C. § 1983 against Defendants Roslyn Jindal (a
Physician’s Assistant), Corizon Health Incorporated (Corizon) (formerly known as Correctional
Medical Services (CMS)) (health-care contractors that provide services to the Michigan
Department of Corrections (MDOC)), Paul Klee (the Warden of the Gus Harrison Facility), and
Dr. William Nelson (a former MDOC physician). (Docket no. 1 at 1-2.) In his Complaint,
Plaintiff alleges that Defendants Jindal, Nelson, Corizon, and CMS violated his Eighth
Amendment rights when they were deliberately indifferent to his serious medical needs. (Id. at
4.) Plaintiff alleges that Defendant Klee violated his rights under the First, Fifth, Eighth, and
Fourteenth Amendments when he “placed plaintiff in grave personal danger of death or physical

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injury in violation of MDOC policy.” (Id.) Through his Complaint, Plaintiff seeks “punitive,
compensatory & declaratory damages in excess of [$25,000] on the deliberate indifferent (sic)
claims” and “immediate injunctive treatment & transfer to prevent death or physical injury.” (Id.)
On February 11, 2014, Plaintiff filed his Amended Complaint and added four additional
defendants to this matter: (1) Thomas G. Finco (Deputy Director of the MDOC); (2) Bill Collier
(the lead psychiatrist at the Gus Harrison facility); (3) Lee McRoberts (the Deputy Warden at the
Gus Harrison facility); and (4) C. Condon (a Resident Unit Manager at the Gus Harrison facility).
(See docket no. 14 at 1.) Plaintiff also adds two additional claims for violations of the Americans
with Disabilities Act, 21 U.S.C. § 12101, and for violations of Michigan’s Handicap Civil Rights
Laws, M.C.L. 37.1103.1 (Id. at 2.)
On March 25, 2014, the undersigned reviewed Plaintiff’s Motion for Immediate
Temporary Injunction and recommended that the Court grant Plaintiff’s Motion because Plaintiff
had shown a “specific, immediate, and substantial threat to [his] safety” and because Defendants
had failed to provide any evidence to the contrary. (Docket no. 31.) On April 22, 2014, the
Court adopted the undersigned’s Report and Recommendation and ordered that “Defendants shall
transfer plaintiff to an MDOC facility that does not have a ‘high concentration’ of members of the
Gangster’s Disciples prison gang.” (Docket no. 44.)
Instead of transferring Plaintiff as the Court ordered, Defendants placed Plaintiff in
segregation and filed a Motion for Reconsideration. (Docket no. 47.) Defendant Klee also filed
a Motion for Summary Judgment, and Defendants Corizon and Nelson filed a Motion to Dismiss.
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The undersigned will refer to Defendants Jindal, Corizon, CMS, Nelson, Finco, and
Collier as the “Medical Defendants” and Defendants Klee, McRoberts, and Condon as the
“MDOC Defendants.”
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(Docket nos. 22 and 27.) On June 24, 2014, the Court dismissed Plaintiff’s claims against CMS
and Nelson because they were barred by the applicable statute of limitations and dismissed
Plaintiff’s claims against the remaining Medical Defendants without prejudice for improper
joinder. (Docket no. 73.) Thus, Plaintiff’s remaining claims are limited to his claims against the
MDOC Defendants.
On January 14, 2015, the Court granted Plaintiff’s Motion for Appointment of Counsel,
noting that while Plaintiff had proceeded in this matter without counsel thus far, the nature of his
discovery requests raised security concerns such that certain documents would need to be
produced for attorney’s eyes only, necessitating the appointment of counsel. (Docket no. 97.)
The Court also granted Defendants’ Motion to Take Plaintiff’s Deposition but required that
Defendants wait to do so until Plaintiff’s counsel is appointed. (Id.)
On August 13, 2015, while Plaintiff was still waiting for the appointment of counsel, the
Court addressed several outstanding motions, many of which dealt with the outstanding discovery
and counsel-appointment issues in this matter. (Docket no. 119.) Most notably, the Court
reiterated its acknowledgement that the “necessity for protecting the sensitive nature of the
documents requested by Plaintiff has not subsided [and that a]llowing Plaintiff to review the
personal files of other prisoners (even with the Court’s supervision) raises security concerns.”
(Id. at 6.) The Court noted that “Defendants . . . have compiled the requested documents, and they
will produce them to Plaintiff’s attorney when one is appointed;” that the Court would “continue to
seek an attorney to represent Plaintiff in this matter;” and that “[i]f the Court is unable to find
counsel for Plaintiff, the Court will consider alternative means for proceeding with discovery.”
(Id. at 6-7.)

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After nearly 10 months, on September 30, 2015, the Court secured counsel for Plaintiff.
(Docket no. 121.) On January 19, 2016, and again on February 4, 2016, the Court held status
conferences with counsel regarding this matter. (See docket nos. 123 and 124.) By February 4,
2016, however, Plaintiff’s pro bono counsel indicated that the attorney–client relationship had
broken down and that counsel intended to file a Motion to Withdraw.
On March 3, 2016, the Court took Plaintiff’s counsel’s motion under advisement and
ordered that Defendants provide the attorney’s-eyes-only documents to the Court for in camera
review. Defendants submitted the documents to the Court on March 17, 2016. Included with the
documents was the affidavit of the Litigation Coordinator/Administrative Assistant at the Gus
Harrison Correctional Facility, which attests to the accuracy and completeness of Defendant’s
production pursuant to the Court’s Order. Having reviewed the documents and the affidavit, the
Court will rule on Plaintiff’s Counsel’s Motion to Dismiss and will take judicial notice of certain
facts as discussed further herein.
II.

Analysis
A.

Judicial Notice of In Camera Evidence

Through his initial discovery requests and his Motion to Compel, in relevant part, Plaintiff
sought discovery of the following:
REQUEST NO. 3: ANY AND ALL misconduct reports of assault or assaultive behavior
by inmate Terry Ridley #186123 during inmate Ridley’s corrections history. Including,
mental health history & statements and misconduct findings of the assault on Unit #2 C/O
Clark on 1/16/14 while Mr. Ridley resided in #2-150-A;
REQUEST NO. 4: ANY AND ALL misconduct history of assaults, assaultive behavior,
possession of weapons by inmate T. Hill #741429, including all misconduct reports and
statements by staff from the misconduct in January 2014 while residing in Unit #2 Adrian
Facility No. 150-A;

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REQUEST NO. 5: ANY AND ALL misconduct assaults, assaultive misconducts and
history of mental health of inmate Michael Little #262146, including any Special Threat
Group (STG) classification, present or past;
Noting that Plaintiff sought this information to bolster his claims that Defendants used these three
prisoners as instruments of retaliation due to their alleged predisposition for violent behavior, the
Court ordered Defendant to produce the following for in camera review:
. . . any documents in their possession, custody, or control regarding assaults or
assaultive behavior by Mr. Ridley while he was in prison from January 1, 2013,
through January 31, 2014 . . . [and]
. . . any documents in their possession, custody, or control that relate specifically to
(1) Mr. Hill’s alleged use or attempted use of a knife to attack Plaintiff or (2) Mr.
Little’s alleged assault on Plaintiff.
(Docket no. 97 at 16-17.) In response to this Order, and the Court’s subsequent Order to provide
the same for in-camera review, Defendant provided two documents related to Mr. Ridley and a
statement by the Litigation Coordinator that no such documents exist regarding Mr. Hill or Mr.
Little. Having reviewed the documents related to Mr. Ridley, the Court finds that the documents
need not be provided to Plaintiff because the Court can alleviate any security concerns by taking
judicial notice of the relevant facts contained in the documents.
Federal Rule of Evidence 201 allows the Court to “judicially notice a fact that is not subject
to reasonable dispute because it . . . can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Here, the Court takes judicial
notice that:


Mr. Ridley was found guilty of Threatening Behavior pursuant to MDOC Policy Directive
03.03.105 on November 11, 2013 where he blocked an MDOC Officer from leaving the
prison tool room and raised his voice demanding that the officer return his prisoner ID; and

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

Mr. Ridley was found guilty of Assault and Battery of a prison staff member on January 16,
2014, where he struck an MDOC staff member with a closed fist two times.

The Court notes that while it takes judicial notice of these facts for purposes of resolving Plaitniff’s
Motion to Compel and the outstanding discovery issues in this matter, the Court makes no ruling
regarding the admissibility of the same.
B.

Plaintiff’s Counsel’s Motion to Withdraw [126]

As noted in the Court’s March 11, 2016 Order, Plaintiff’s counsel seeks to withdraw under
E.D. Mich. Local Rule 83.25 and Michigan Rules of Professional Conduct 1.16(3) and (6).
(Docket no. 126 at 7.)
[A] lawyer may withdraw from representing a client if withdrawal can be
accomplished without material adverse effect on the interests of the client, or if:
.
(3)

.

the client insists upon pursuing an objective that the lawyer
considers repugnant or imprudent; [or]
.

(6)

.

.

.

other good cause for withdrawal exists.

Mich. R. Prof’l Conduct 1.16(b). Notably, “[w]hen ordered to do so by a tribunal, a lawyer shall
continue representation notwithstanding good cause for terminating the representation.” Id. at
1.16(c).

Likewise, E.D. Mich. Local Rule 83.25 implies that withdrawal of an attorney’s

appearance is acceptable only through court order. E.D. Mich. L.R. 83.25(b)(1)(B).
In this matter, counsel contends that there has been “a fundamental breakdown in the
attorney-client relationship caused by [Plaintiff’s] belligerent insistence upon taking action that
[counsel] believes to be legally unjustified.”

(Docket no. 126 at 8.)

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Counsel notes that

Plaintiff’s “tone and attitude has become increasingly hostile” and that he “no longer accept[s] the
advice of counsel.” (Id.) Most notably, Plaintiff has “asserted that [counsel’s] advice constitutes
‘collaboration’ with the Assistant Attorney General, and he has told [counsel] that he intends to
file a motion to amend his complaint without further consulting her.” (Id. at 9.)
On February 23, 2016, Plaintiff filed his Motion to Re-file Motion to Amend Complaint
and Response to 126 Motion to Compel. (Docket no. 128.) As the title of his filing suggests,
Plaintiff asks the Court for permission to re-file his Motion to Amend, and he responds to his
counsel’s request for withdrawal.

With regard to the issue of counsel, though, Plaintiff

acknowledges a breakdown in communication to the extent that he believes “counsel was
corroborating with [defense counsel] to dismiss the case expeditiously” and that counsel has
“failed to advise Plaintiff on the progress of the case.” (Docket no. 128 at 2.) Plaintiff, however,
states that he “is willing to work with counsel if: (a) counsel will inform Plaintiff of all court
rulings, and (b) follow Plaintiff’s requests that do not violate ethics, or (c) simply allow Plaintiff to
prepare all pleadings, subject to approval and assist with discovery.” (Id. at 3.)
Acknowledging the divergent interests between resolving the discovery issues in this
matter and counsel’s ethical concerns, the Court reserved ruling on counsel’s motion and ordered
in-camera review of the at-issue documents. Having reviewed the documents and taken judicial
notice of the relevant facts therein, the Court finds no reason to deny Plaintiff’s counsel’s Motion
in light of the ethical issues at hand. Therefore, the Court will grant Plaintiff’s counsel’s Motion
to withdraw.
C.

Plaintiff’s Motion to re-file Motion to Amend Complaint [128]

As part of his response to his counsel’s Motion to Withdraw, Plaintiff asked that he be

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allowed to re-file his Motion to Amend Complaint. Plaintiff’s request is improper in its current
form because it is combined with his response regarding his attorney’s motion and because he was
represented by counsel at the time that he filed the motion.2 Therefore, the Court will deny his
motion. Nevertheless, nothing in this order prevents Plaintiff from filing a Motion to Amend if he
chooses to do so following his counsel’s withdrawal.
IT IS THEREFORE ORDERED that
a. The Court takes judicial notice of the facts described herein;
b. Plaintiff’s Counsel’s Motion to Withdraw [126] is GRANTED; and
c. Plaintiff’s Motion to re-file Motion to Amend Complaint and response to 126 [128] is
DENIED.
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: April 1, 2016

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

2

“Although criminal defendants possess a constitutional right to be heard and to defend
themselves,” an individual “has no right to hybrid representation, that is, a right ‘to be heard both
in person and by attorney.’” Moniz v. McKee, No. 05-71699, at *9, (E.D. Mich. Sept. 25, 2007)
(Battani, J.) (citing Crane v. Kentucky, 476 U.S. 683 (1986); McKaskle v. Wiggins, 465 U.S. 168,
183 (1984)) (quoting United States v. Foster, 9 F.R.D. 367, 372 (S.D.N.Y.1949)); see also 28
U.S.C. § 1654 (“In all courts of the United States the parties may plead and conduct their own
cases personally or by counsel.”) (emphasis added); Brasier v. Jeary, 256 F.2d 474 (8th Cir. 1958),
cert denied 358 U.S. 867, reh’g denied 358 U.S. 923.
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PROOF OF SERVICE
I hereby certify that a copy of this Report and Recommendation was served on counsel of
record and on Plaintiff Mark White on this date.
Dated: April 1, 2016

s/ Lisa C. Bartlett
Case Manager

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