Bonner v. Romulus Police Department et al

Filing 74

ORDER RECONSIDERING ORDER DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL 70 . Signed by Magistrate Judge Elizabeth A. Stafford. (MarW)

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 RECONSIDERING ORDER DENYING PLAINTIFF’S
MOTIONS TO APPOINT COUNSEL [70],
On February 19, 2015, this Court denied pro se plaintiff Brian
Bonner’s multiple motions to appoint counsel and a guardian ad litem,
finding that his numerous filings demonstrated that he had sufficient access
to the Court and was capable of litigating his case at the present stage.
[70]. The Court further found that Bonner did not require appointment of a
guardian since he had not been rendered legally incompetent and his
mental illness did not appear to interfere with his ability to understand the
nature of his claims. Id. Since the date of that order, Bonner has filed two
additional memoranda, one of which clearly raises questions about his

continued ability to represent himself. In his latest memorandum, 1 he
alleges deliberate interference on the part of correctional officers with his
access to the courts through destruction of legal documents and refusal to
provide him with a copy of his prison account information to permit him to
file a complaint against the officers in federal court. [73, Pg. ID 1627-31].
He also alleges that these same correctional officers (who are not parties to
this case) have assaulted him and recruited other inmates to do the same,
and that he has been placed in segregation on false charges of assault,
rendering him unable to take the actions necessary to properly litigate his
case. Id. If these allegations are true, certain of these actions would be
considered clear violations of Bonner’s constitutional right to access the
courts. However, the Court is unable to test the veracity of these claims
because they are lodged against non-parties to this action.
Even if not true, however, these claims appear to call into question
Bonner’s ability to represent himself, as he has been advised on multiple
occasions that he is to limit filings in this Court to the claims and parties
presently pending in this action – something he continually fails to do

1

The Court had already struck Bonner’s other memorandum based on its
previous order warning Bonner that filings not comporting to the Federal or
Local rules, or specifically dealing with the remaining parties or claims at
issue, would be stricken. [70, Pg. ID 1619; 72].
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despite these admonishments. [53, Pg. ID 1355-57; 70, Pg. ID 1619; 72].
The Court is therefore concerned that Bonner may be incapable of
understanding the nature of his claims or the rules of law, and is actually
unable to represent himself at this juncture. As such, the Court has
reconsidered its order denying Bonner appointment of counsel.
Rule 54(b) permits a Court, “at any time” to reconsider an
interlocutory order. See Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir.
1991). The Sixth Circuit has outlined three justifications for such
reconsideration: “(1) an intervening change of controlling law; (2) new
evidence available; or (3) a need to correct a clear error or prevent
manifest injustice.” Rodriguez v. Tenn. Laborers Health & Welfare Fund,
89 Fed. Appx. 949, 959 (6th Cir. 2004) (citation omitted). As discussed
above, the Court finds that new evidence, in the form of Bonner’s recent
memorandum, justifies this Court’s reconsideration of its prior order
denying him appointment of counsel.
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
circumstances” warrant such an appointment. Lavado v. Keohane, 992
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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).
As noted above, because Bonner continues to be unable to conscribe
his filings to the case at hand and because, if true, his allegations would
demonstrate interference with not only his constitutional right to prosecute
this case but his right to file any other case, the Court finds that exceptional
circumstances exist warranting the appointment of counsel on his behalf.
For these reasons, the Court VACATES IN PART its prior order [70] to the
extent it denied Bonner appointment of counsel, and ORDERS that counsel
be appointed for him.
IT IS SO ORDERED.
Dated: March 25, 2015
Detroit, Michigan

s/Elizabeth A. Stafford
ELIZABETH A. STAFFORD
United States Magistrate Judge

NOTICE TO THE PARTIES REGARDING OBJECTIONS
The parties’ attention is drawn to Fed. R. Civ. P. 72(a), which
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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 March 25, 2015.
s/Marlena Williams
MARLENA WILLIAMS
Case Manager

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