Annabel v. Frost et al

Filing 153

ORDER Overruling and Sustaining in Part 117 Objection to 126 Order on Motion for Recusal, 106 Order on Motion to Take Deposition, 105 Order on Motion to Appoint Counsel, Objection 118 , and 133 Objection by Robert Annabel re 108 Order on Motion to Strike and Provisionally Granting 80 Motion to Appoint Counsel. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT ANNABEL,

Case No. 14-10244
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
v.
JACK FROST, ET AL.,

U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendants.
/
ORDER OVERRULING IN PART AND SUSTAINING IN PART PLAINTIFF’S
OBJECTIONS [117, 118, 133] TO MAGISTRATE JUDGE’S ORDERS [105, 106, 108,
126]; REQUIRING THAT PLAINTIFF BE PROVIDED WITH A COPY OF HIS
DEPOSITION TRANSCRIPT; AND PROVISIONALLY GRANTING PLAINTIFF’S
MOTION TO APPOINT COUNSEL [80]
Plaintiff Robert Annabel has filed several objections to the Magistrate
Judge’s orders. For the reasons stated below, the Court OVERRULES in part
and SUSTAINS in part Plaintiff’s objections. Furthermore, the Court orders that
Plaintiff be provided with a copy of his deposition transcript. Finally, the Court
provisionally GRANTS Plaintiff’s Motion to Appoint Counsel.
PROCEDURAL HISTORY
Plaintiff filed a Motion for Appointment of Counsel [80] on January 31,
2017. Defendants filed a Motion for Leave to Take the Deposition of the Plaintiff
[83] on February 7, 2017. Plaintiff filed a Motion to Strike Defendants’ Motion for
Leave to Depose [85] on February 22, 2017.
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On July 25, 2017, the Magistrate Judge denied Plaintiff’s Motion for
Appointment of Counsel [105] and granted Defendants’ Motion for Leave to Take
Deposition of Plaintiff [106]. On July 30, 2017, the Magistrate Judge denied
Plaintiff’s Motion to Strike [108].
On August 8, 2017, Plaintiff filed objections1 [117, 118] to orders [105, 106,
108].
Plaintiff filed a Motion for Recusal of Magistrate Judge [115] on August 15,
2017. On September 13, 2017, the Magistrate Judge denied Plaintiff’s Motion for
Recusal [126]. Plaintiff filed Objections [133] to the Order on September 28, 2017.
On October 3, 2017, the Sixth Circuit held that it does not have jurisdiction
over appeal Nos. 17-1927 and 17-1928 (the objections raised in Appeal of
Magistrate Judge Decision [117, 118]). Annabel v. Frost, No. 15-1518, (6th Cir.
Oct. 3, 2017).
STANDARD OF REVIEW
When a litigant objects to a magistrate judge’s ruling on a non-dispositive
pretrial matter, the court may “modify or set aside any part of the order that is
clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). The “clearly
erroneous” standard does not permit a district court to reverse the magistrate
judge’s finding simply because it would have decided the issue differently.

1

Plaintiff filed the objections as “Appeal of Magistrate Judge Decision.”
2

Anderson v. City of Bessemer, N.C., 470 U.S. 564, 573 (1985). Rather, a “finding
is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948).
ANALYSIS
I.

Plaintiff’s Objections to Discovery Orders
In their Motion to Take Deposition [83], Defendants argued that they are

entitled to take Plaintiff’s deposition because Plaintiff alleged that Defendants
retaliated against them in violation of the First Amendment.
In response, Plaintiff argued that Defendants are not entitled to take his
deposition and that the Motion was “Mr. Thurber’s latest act to relentlessly harass
Plaintiff.” [Dkt. #85 at 1]. Should the Court decide to order the deposition, Plaintiff
requested to: have the deposition supervised on live video “so that a federal judge
can restrain harassing or unfair tactics, and also rule immediately upon Plaintiff’s
objections;” be permitted to “depose all five defendants;” and receive a deposition
transcript. Id. at 2-3.
The Magistrate Judge granted Defendants’ Motion and denied Plaintiff’s
Motion. [Dkt. #106; #108]. The Magistrate Judge explained that “any defendant,
including these Defendants, get to depose a plaintiff.” [Dkt. #108]. The Magistrate
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Judge further explained that “[b]ecause Plaintiff is incarcerated, leave of the court
is required to take his deposition” under Fed. R. Civ. P. 30(a)(2). Id.
In the aforementioned orders, the Magistrate Judge did not rule on Plaintiff’s
additional requests.
Plaintiff objects to the orders on three grounds:
Objection 1: The Court’s orders failed to rule on
Plaintiff’s request to bilaterally depose defendants;
Objection 2: While Plaintiff agreed to deposition itself,
he requested other protective orders; and
Objection 3: Plaintiff is entitled to a copy of the
deposition transcripts.
[Dkt. #118].
On October 6, 2017, the Magistrate Judge addressed Objection 2 in its Order
denying Plaintiff’s Motion for Deposition Protective Order [138]. The Magistrate
Judge explained:
The deposition will be accurately recorded by a court
reporter, and there will be a certified transcript of the
proceedings. If Plaintiff has any objections during the
course of the deposition, he may place those objections
on the record.
Plaintiff did not object to the Order [138]. Moreover, even if Plaintiff had filed
such an objection to the Order, the Court holds that the Magistrate Judge’s ruling
was not clearly erroneous. Accordingly, Objection 2 is overruled.

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However, Objections 1 and 3 are sustained. Based on the Court’s review of
the docket, it appears as though Plaintiff is correct in noting that the Magistrate
Judge did not rule on Plaintiff’s requests to “bilaterally depose defendants”
(Objection 1) and to receive a copy of his deposition transcript (Objection 3).
With respect to Plaintiff’s request to depose five defendants, Plaintiff may
file a separate motion setting forth his argument as to why he should be authorized
to take their depositions. Should Plaintiff elect to file such a motion, the Magistrate
Judge will review the motion, and Defendants’ response, in due course.
In addition, the Court grants Plaintiff’s request to receive a copy of his
deposition transcript without costs. Plaintiff, a prisoner proceeding in forma
pauperis, is entitled to a copy of his deposition transcript in order to effectively
litigate his claim. See Bounds v. Smith, 430 U.S. 817, 824–25 (1977) (explaining
that “[s]tates [should] shoulder affirmative obligations to assure all prisoners
meaningful access to the courts . . . . [and] must forgo collection of docket fees
otherwise payable to the treasury and expend funds for transcripts.”).
II.

Plaintiff’s Objection to Order Denying Motion for Appointment of
Counsel
In his Motion for Appointment of Counsel [80], Plaintiff argued that the

Court should appoint counsel on his behalf because Defendants are engaging in
unfair litigation strategy and denying him access to the courts. [Dkt. #80 at 5].
Plaintiff further maintains that the Sixth Circuit “already found merit for this case
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to proceed to jury trial.” Id. at 6. Finally, Plaintiff submits that Defendants’
“lawless and corrupt rampage” constitutes “extraordinary circumstances” that
justify appointment of counsel in this case. Id. at 11.
The Magistrate Judge noted that there is no constitutional right to
appointment of counsel in civil cases and denied Plaintiff’s Motion as premature,
explaining that “it is the practice of this Court to defer any attempt to obtain
counsel for pro se civil rights Plaintiffs until after motions to dismiss or motions
for summary judgment have been denied.” [Dkt. #105].
Plaintiff’s Objection [117] to the Order states: “Boilerplate language
denying appointment simply because defendants may file yet another motion for
summary judgment is an abuse of discretion.”
Plaintiff relies on Hendricks v. Coughlin, 114 F.3d 390, 393 (2d Cir. 1997),
in which the Second Circuit held that the “district court’s automatic denial of
Hendricks’ request for appointment of counsel because the case had not survived a
dispositive motion constituted an abuse of discretion under Section 1915(e).”
Plaintiff also cites to Pruitt v. Mote, 503 F.3d 647, 660 (7th Cir. 2007), in which
the Seventh Circuit held that the district court “abused its discretion in denying in

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forma pauperis prisoner’s motion for pro bono counsel without analyzing whether
prisoner was competent to litigate his claims.”2
The Court has broad discretion in determining whether counsel should be
appointed. Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987)
(“[A]ppointment of counsel in a civil case is . . . a matter within the discretion of
the court.”). Although there is no right to counsel in a prisoner’s civil case, counsel
may be appointed in exceptional cases. Lavado v. Keohane, 992 F.2d 601, 605-06
(6th Cir. 1993).
Where a prisoner, proceeding pro se, has made a colorable claim but lacks
the means to adequately investigate, prepare or present it, exceptional
circumstances exist. Johnson v. Howard, 20 F. Supp. 2d 1128, 1129 (W.D. Mich.
1998) (holding that the Magistrate Judge’s order denying appointment of counsel
was clearly erroneous).
But, appointment of counsel is inappropriate “. . . when a pro se litigant’s
claims are frivolous or when the chances of success are extremely slim.” Mars v.
Hanberry, 752 F.2d 254, 256 (6th Cir. 1985) (internal citations omitted).
Much of Plaintiff’s Motion [80] consists of offensive remarks about
Defendants and their counsel. However, setting aside Plaintiff’s baseless opinions,

The Sixth Circuit has explicitly declined to adopt the test set forth in Pruitt for
assessing motions for counsel. See Cleary v. Mukasey, 307 Fed. App’x 963, 966
(6th Cir. 2009).

2

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the Court recognizes Plaintiff’s overarching request for assistance in litigating a
complex issue of constitutional law. Although the cases on which Plaintiff relies
are not binding on this Court, the Court finds them instructive nonetheless.
In this case, Plaintiff has presented a colorable (and plausible) claim, which
is shown by his ability to survive appellate review of Defendants’ Motion for
Summary Judgment [28].3 See Annabel v. Frost, No. 15-1518 (6th Cir. Sep. 21,
2016) (holding that Plaintiff’s “allegations, coupled with the temporal proximity
between [his] grievance and the misconduct charge, sufficiently stated a plausible
First Amendment retaliation claim.”). Accordingly, Plaintiff has demonstrated that
his First Amendment retaliation claim is not frivolous. Because Plaintiff’s
“surviving claim potentially has merit,” and Plaintiff would benefit from the
assistance of counsel, “the Court will grant [his] motion to appoint counsel.”
Johnson v. Clafton, 136 F. Supp. 3d 838, 847 (E.D. Mich. 2015).
III.

Plaintiff’s Objections to Order Denying Motion for Recusal

In his Motion for Recusal of the Magistrate Judge [115], Plaintiff argued that
the Magistrate Judge should recuse himself for bias against a litigant pursuant to 28
U.S.C. § 144 and § 455.

Defendants described their motion as a “Motion for Summary Judgment;”
however, this Court and the Sixth Circuit analyzed the Motion as a motion to
dismiss under Fed. R. Civ. P. 12(b)(6).
3

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In its Order denying Plaintiff’s Motion, the Magistrate Judge explained that
Plaintiff offered “no basis for questioning [his] impartiality other than [Plaintiff’s]
disagreement with [his] specific ruling in specific motions and judicial conduct in
general.” [Dkt. #126 at 2].
Plaintiff objects to the Order on five grounds:
Objection 1: The Supreme Court has held that the
‘extrajudicial source’ doctrine is not a prerequisite to
grounds for recusal;
Objection 2: MJ R. Steven Whalen is predisposed to have
this case dismissed again and has unduly delayed and
hindered the proceedings;
Objection 3: MJ Whalen refuses to accept the res judicata
of the Court of Appeals findings;
Objection 4: MJ Whalen refuses to rule on allegations of
Attorney John L. Thurber’s misconduct; and
Objection 5: MJ Whalen’s prior statements are not
entitled to isolated interpretations.
[Dkt. #133 at 1-2].
None of Plaintiff’s objections has merit. Plaintiff’s objections consist of
unfounded, and unwarranted, accusations against the Magistrate Judge. The
Magistrate Judge correctly noted that Plaintiff’s attempt to infer bias from adverse
judicial rulings and case management was improper. Plaintiff’s disagreement with
the Magistrate Judge’s rulings does not warrant recusal. Accordingly, Plaintiff’s
objections are overruled.
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CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s Objections [118] are OVERULED in
part and SUSTAINED in part.
IT IS FURTHER ORDERED that Plaintiff be provided with a copy of his
deposition transcript.
IT IS FURTHER ORDERED that Plaintiff’s Objection [117] is
SUSTAINED.
IT IS FURTHER ORDERED that Plaintiff is provisionally appointed
counsel. The Court has sent a request for pro bono counsel to represent Plaintiff. If
no attorney agrees to represent Plaintiff pro bono, he will be required to proceed
without counsel.
IT IS FURTHER ORDERED that Plaintiff’s Objections [133] are
OVERRULED.
SO ORDERED.

Dated: December 28, 2017

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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