Tippins v. Caruso et al

Filing 24

ORDER DENYING Without Prejudice Plaintiff's 23 Motion to Appoint Counsel. Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHNNY TIPPINS,
Case No. 2:14-cv-10956
District Judge Stephen J. Murphy
Magistrate Judge Anthony P. Patti

Plaintiff,
v.
PATRICK CARUSO, et al.,
Defendants.
___________________________________/

ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S SECOND
MOTION FOR APPOINTMENT OF COUNSEL (DE 23)
This matter is before the Court for consideration of Plaintiff Johnny Tippins’
second motion for appointment of counsel. (DE 23.) For the reasons that follow,
Plaintiff’s motion is DENIED WITHOUT PREJUDICE.
I.

BACKGROUND
Plaintiff, a state prisoner who is proceeding in forma pauperis, brings claims

under 42 U.S.C. § 1983, alleging that state prison officials and two local mayors
violated his rights under the Eighth Amendment by forcing him to drink
contaminated water during his incarceration. Since filing his complaint on March
4, 2014, the Court has granted two and denied one of Plaintiff’s motions to amend
his complaint (DE 9, 15, and 18), has granted Plaintiff’s motion to reinforce court
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order (DE 21), and has denied without prejudice Plaintiff’s initial motion for
appointment of counsel. (DE 15.)
Plaintiff filed this second motion for appointment of counsel on April 8,
2015. (DE 23.) In his motion, he asks the court to appoint an attorney in this civil
matter for three main reasons. First, Plaintiff contends that he is having difficulty
complying with the Court’s rules. As an example, he notes that he was unaware of
the requirement in the Eastern District of Michigan’s Local Rules that he must
provide a fully amended complaint along with any motion to amend his complaint.
(Mot. at ¶ 6, DE 23.) In addition, he notes that the research necessary to pursue
this case requires the expertise of an attorney. (Id. at ¶ 10.) Second, he indicates
that as of November 2014, the Kinross Correctional Facility removed all of the
typewriters from the library, leaving Plaintiff without access to a word processing
device. (Id. at ¶ 7.) Finally, Plaintiff asserts that his case has merit but all of the
attorneys to whom he has written have declined to represent him in this matter.
(Id. at ¶ 8.) Plaintiff also asks the Court to provide him with a copy of his original
complaint because he had insufficient funds to make a copy.
II.

ANALYSIS
As a preliminary matter, although Plaintiff styles his motion as one for

appointment of counsel, the Court does not have the authority to appoint a private
attorney for Plaintiff in this civil matter. Proceedings in forma pauperis are
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governed by 28 U.S.C. § 1915, which provides that “[t]he court may request an
attorney to represent any person unable to afford counsel.” 28 U.S.C. §
1915(e)(1) (emphasis added). However, even if the circumstances of Plaintiff’s
case convinced the Court to engage in such a search, “[t]here is no right to
recruitment of counsel in federal civil litigation, but a district court has discretion
to recruit counsel under 28 U.S.C. § 1915(e)(1).” Dewitt v. Corizon, Inc., 760
F.3d 654, 657 (7th Cir. 2014); see also Olson v. Morgan, 750 F.3d 708, 712 (7th
Cir. 2014) (“Congress hasn’t provided lawyers for indigent prisoners; instead it
gave district courts discretion to ask lawyers to volunteer their services in some
cases.”).
The Supreme Court has held that there is a presumption that “an indigent
litigant has a right to appointed counsel only when, if he loses, he may be
deprived of his physical liberty.” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 2627 (1981). With respect to prisoner civil rights cases in particular, the Court of
Appeals for the Sixth Circuit has held that “there is no right to counsel. . . . The
appointment of counsel in a civil proceeding is justified only by exceptional
circumstances.” Bennett v. Smith, 110 F. App’x 633, 635 (6th Cir. 2004). 1
Accordingly, although the Court has the statutory authority to request counsel for

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As noted above, although some of the case law colloquially discusses the Court’s
“appointment” of counsel in prisoner rights cases, under 28 U.S.C. § 1915 the
Court may only request that an attorney represent an indigent plaintiff.
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pro se plaintiffs in civil cases under 28 U.S.C. § 1915(e), the exercise of this
authority is limited to exceptional situations.
In evaluating a matter for “exceptional circumstances,” a court should
consider: (1) the probable merit of the claims, (2) the nature of the case, (3) the
complexity of the legal and factual issues raised, and (4) the ability of the litigant
to represent him or herself. Lince v. Youngert, 136 F. App’x 779, 782 (6th Cir.
2005); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993); Lanier v.
Bryant, 332 F.3d 999, 1006 (6th Cir. 2003).
Applying the foregoing authority, Plaintiff has not described any
circumstances to justify a request for appointment of counsel. Plaintiff contends
that the expertise of an attorney would be helpful to litigate his case, but that he
has not been able to find an attorney on his own. Such factors would apply to
nearly every pro se prisoner proceeding in forma pauperis, and do not constitute
extraordinary circumstances. Although the claims in Plaintiff’s complaint seem to
involve moderately complex issues about a chemical present in the water supply,
Plaintiff himself notes that these issues have already been outlined in City of St.
Louis v. Velsicol Chemical Corp., 708 F. Supp. 2d 632 (E.D. Mich. Mar. 25,
2010). (Mot. at ¶ 9.) Moreover, Plaintiff has on several occasions illustrated his
ability to articulate his claims and adequately communicate his requests to the
Court in a reasonably clear and well-organized manner, and with appropriate legal
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citation. For example, Plaintiff has filed three motions to amend his complaint,
and the Court has granted two of those motions. (DE 9 and 18.) In addition, the
Court granted Plaintiff’s motion to require service by the U.S. Marshals. (DE 21.)
While Plaintiff’s inability to access a typewriter or other word processing
device may make litigation more onerous, there is no requirement that the prison
provide Plaintiff with a typewriter. See, e.g., Wehner v. Lewis, 985 F.3d 562, at
*1 (6th Cir. 1993) (concluding that prisoners do not have “a right to possess and
use a typewriter”) (citing Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985)).
Furthermore, even after the prison removed his access to a typewriter, Plaintiff has
demonstrated that he is capable of engaging in motion practice and responding to
Court orders. Finally, as this is a civil case in which Plaintiff is seeking only
monetary damages, there is no danger that Plaintiff will be deprived of his
physical liberty over and above his current sentence if he loses this case.2
Accordingly, at this time, Plaintiff’s motion to appoint counsel is DENIED
WITHOUT PREJUDICE. (DE 23.) Plaintiff may petition the Court for the

2
 Plaintiff does request release

from prison, in addition to his damage claim for $70
million, but generally such equitable relief is beyond this Court’s authority in a
non-habeus corpus civil case. See Wershe v. Combs, 763 F.3d 500, 504 (6th Cir.
2014) (“Generally, a prisoner in state custody cannot use a § 1983 action to
challenge ‘the fact or duration of his confinement.”’) (quoting Wilkinson v. Dotson,
544 U.S. 74, 78 (2005)).   

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recruitment of pro bono counsel if this case survives dispositive motion practice,
proceeds to trial, or if other circumstances demonstrate such a need in the future.
Additionally, the Court will attach to this order a copy of Plaintiff’s initial
complaint. (DE 1.) However, Plaintiff should not expect the Court to take such a
measure in the future and is cautioned that he is responsible for paying all fees
associated with his lawsuit in accordance with 28 U.S.C. § 1915. See In re Prison
Litig. Reform Act, 105 F.3d 1131, 1132 (6th Cir. 1997) (“Payment of litigation
expenses is the prisoner’s responsibility.”).
IT IS SO ORDERED.

Dated: April 9, 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 April 9, 2015, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
[phone]

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