Bonner v. Romulus Police Department et al

Filing 70

ORDER DENYING 64 Request filed by Brian Bonner, 11 Request filed by Brian Bonner, 29 Application for Appointment of Counsel filed by Brian Bonner, 36 Application for Appointment of Counsel filed by Brian Bonner, 60 MOTION TO EXTE ND to prepare reply filed by Brian Bonner, 63 MOTION For PreTrial Disclosures Rule 26(3)A, et al and/or Rule 26(b), et al Motion for Discovery filed by Brian Bonner, 30 Docket Annotation, 68 Request filed by Brian Bonner, 66 Request filed by Brian Bonner, AND STRIKING VARIOUS FILINGS. (See Order for Further Details). Signed by Magistrate Judge Elizabeth A. Stafford. (Williams, Marlena)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTICT OF MICHIGAN
SOUTHERN DIVISION
BRIAN JOHNNIE BONNER,
Plaintiff,
v.

Civil Action No.: 14-10196
Honorable Gerald E. Rosen
Magistrate Judge Elizabeth A. Stafford

ROMULUS POLICE
DEPARTMENT, et al.,
Defendants.
__________________________________/
ORDER DENYING PLAINTIFF’S MOTIONS TO APPOINT COUNSEL
[29, 30, 36, 66, 68], DENYING MOTIONS FOR DISCOVERY
[11, 63, 64], DENYING MOTION FOR EXTENSION OF TIME [60],
AND STRIKING VARIOUS FILINGS [27, 31, 33, 34, 35, 37, 38, 39, 40, 41,
42, 43, 44, 45, 46, 51, 52, 61, 62, 67, 69]
On September 30, 2014, the Honorable Gerald E. Rosen dismissed
all of plaintiff Brian Bonner’s claims against all defendants except his claims
of Fourth, Fifth and Eighth Amendments violations against police officers
Haynes and Perkins (hereinafter “Defendants”). [53]. Bonner alleges that
Defendants falsely arrested him, used excessive force, and inflicted cruel
and unusual punishment by causing him to hyperventilate and have a
seizure by overheating the squad car, denying him water and medical
attention, and forcing him to lie in his own blood and feces in a cell without
a working toilet or toilet paper. Bonner additionally claims that he was
denied access the phone to contact an attorney. Defendants deny the

allegations in their answer to the complaint. Discovery has not yet
commenced.
Bonner has filed numerous motions, requests and other documents,
many of which do not conform either to the Federal Rules of Civil
Procedure or the Local Rules of this district. Judge Rosen’s order disposed
of some, but not all of these filings. On January 7, 2015, the abovecaptioned matter was reassigned to the undersigned for all pretrial matters
pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). The Court now addresses
the remaining filings.
A.

Motions to Appoint Counsel or Guardian Ad Litem

In several filings, Bonner requests the appointment of counsel or a
guardian ad litem. [29, 30, 36, 66, 68]. In support, he says that that he has
been diagnosed with mental conditions that make it difficult for him to
litigate and that prison staff have retaliated against him by intercepting his
mail and denying him access to the law library, thereby preventing him from
fully litigating his case.
Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an
attorney to represent any person unable to afford counsel.” Appointment of
counsel under § 1915(e)(1) is not a constitutional right; a district court is
vested with broad discretion to determine whether “exceptional
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circumstances” warrant such an appointment. Lavado v. Keohane, 992
F.2d 601, 604-606 (6th Cir. 1993). In order to make that determination, the
Court considers the type of case involved, the party’s ability to represent
himself, the complexity of the case, and whether the claims being
presented are frivolous or have a small likelihood of success. Id.
Appointment of counsel pursuant to § 1915(e)(1) is rare because “there are
no funds appropriated to pay a lawyer or to even reimburse a lawyer’s
expense.” Clarke v. Blais, 473 F. Supp. 2d 124, 125 (D. Me. 2007).
Under Federal Rule of Civil Procedure17(c)(2), “[t]he court must
appoint a guardian ad litem—or issue another appropriate order—to protect
a minor or incompetent person who is unrepresented in an action.”
Consideration of an appointment under Rule 17(c)(2) is triggered if a court
is “presented with evidence from an appropriate court of record or a
relevant public agency indicating that the party [has] been adjudicated
incompetent, or if the court received verifiable evidence from a mental
health professional demonstrating that the party is being or has been
treated for mental illness of the type that would render him or her legally
incompetent.” Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 201
(2d Cir. 2003). See also Powell v. Symons, 680 F.3d 301, 307 (3d Cir.
2012) (same).
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The Court finds that Bonner has not shown exceptional
circumstances meriting the appointment of counsel pursuant to
§ 1915(e)(1) at this juncture. Bonner’s numerous filings demonstrate that
he has had adequate access to the court, and his remaining claims do not
appear too complex for him to litigate. The Court further finds that, although
Bonner has been diagnosed with mood and personality disorders that
impact his “emotions, behaviors and conduct,” [30, Pg ID 418], he has not
been adjudged to be incompetent and his filings suggest that he
understands the nature of his claims. For these reasons, Bonner’s motions
to appoint counsel or a guardian ad litem [29, 30, 36, 66, 68] are DENIED
WITHOUT PREJUDICE.
B.

Motions for Discovery

Bonner has filed motions for discovery, but Defendants only
answered his complaint in November 2014 and no scheduling order is yet
in place. Furthermore, Bonner may not file a motion for discovery before
serving his requests on the opposing party and in conformity with Federal
Rules of Civil Procedure 26 and 45. If Defendants oppose Bonner’s
discovery requests or fail to answer them timely, he may then seek relief

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from the Court. Therefore, Bonner’s motions for discovery [11, 60,1 63, 64]
are DENIED.
C.

Motion for Extension of Time and Response to Defendants’
Answer to Complaint

On November 19, 2014, Bonner moved for an extension of time to
respond to Defendants’ answer. [60]. Before this motion was addressed
by the Court, Bonner filed a response to Defendants’ answer. [61].
However, under the Federal Rules of Civil Procedure, a response to an
answer is “allowed” only “if the court orders one.” Fed. R. Civ. P. 7(a)(7).
The Court did not order Bonner to respond to Defendant’s answer or
affirmative defenses, so his motion for an extension of time [60] is
DENIED, and his response to Defendant’s answer [61] is STRICKEN.
D.

Miscellaneous Filings

In addition to the above motions and requests, Bonner has filed
myriad other documents with the Court, most of which do not conform to
the Federal Rules of Civil Procedure or the Local Rules of this district. For
instance, Bonner filed a number of documents totaling hundreds of pages
that purport to be evidence that supports his case. [27, 33, 37, 38, 39, 40,
41, 42, 43, 44, 45, 46, 62]. The submission of evidence in this manner is
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This document was a motion for an extension of time to file a response to
Defendants’ answer, but Bonner requested discovery in it as well.
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improper. Evidence may be offered to the Court only when the parties
engage in dispositive motion practice or during trial.
Further, pursuant to Judge Rosen’s September 30 order, this case is
limited to the allegations that Defendants Haynes and Perkins violated
Bonner’s Fourth, Fifth and Eighth Amendment rights. Bonner’s numerous
filings allege claims of ongoing retaliation by persons who have never been
or are no longer defendants in this case are improper. [31, 34, 35, 51, 52,
67, 69]. To the extent that Bonner wishes to add new claims or
defendants, he must request leave to amend his complaint pursuant to
Federal Rule of Civil Procedure15.
Thus, these other miscellaneous filings [27, 31, 33, 34, 35, 37, 38,
39, 40, 41, 42, 43, 44, 45, 46, 51, 52, 62, 67, 69] are STRICKEN as being
irrelevant to the present case before the Court and for not conforming to
the Federal or Local rules. Bonner is warned that any further filings of this
type will be stricken without further notice and he is advised to consult the
rules and limit his future filings to the types of motions and responses that
are in accordance therewith.
IT IS SO ORDERED.
Dated: February 19, 2015
Detroit, Michigan

s/Elizabeth A. Stafford
ELIZABETH A. STAFFORD
United States Magistrate Judge
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NOTICE TO THE PARTIES REGARDING OBJECTIONS
The parties’ attention is drawn to Fed. R. Civ. P. 72(a), which
provides a period of fourteen (14) days from the date of receipt of a copy of
this order within which to file objections for consideration by the district
judge under 28 U.S. C. §636(b)(1).

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s ECF
System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on February 19, 2015.
s/Marlena Williams
MARLENA WILLIAMS
Case Manager

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