Braxton v. Heritier et al

Filing 28

ORDER DENYING 9 Application for Appointment of Counsel filed by Joses Braxton. Signed by Magistrate Judge Elizabeth A. Stafford. (MarW)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTICT OF MICHIGAN
SOUTHERN DIVISION
JOSES BRAXTON,
Plaintiff,
v.

Civil Action No.: 14-12054
Honorable Avern Cohn
Magistrate Judge Elizabeth A. Stafford

TOM HERITIER and
MICHAEL MURPHY,
Defendants.
__________________________________/

ORDER DENYING PLAINTIFF’S APPLICATION FOR
APPOINTMENT OF COUNSEL [R. 9] WITHOUT PREJUDICE
Plaintiff Joses Braxton, moves for appointment of counsel. [R. 9].
Braxton brings the instant action under 42 U.S.C. §1983 against
Defendants Tom Heritier and Michael Murphy, officers with the Saginaw
Police Department, for civil conspiracy to subject him to an unreasonable
search and seizure, as well as falsely arrest and maliciously prosecute him,
all in violation of the Fourth Amendment.1 He further alleges civil
conspiracy under 42 U.S.C. § 1985(3), claiming a deprivation of equal
protection of the laws based on his race. Defendants moved to dismiss
Braxton’s claims on limited grounds, a motion this Court has recommended
1

While the actual claims in Braxton’s complaint are not entirely clear, he
does not dispute Defendants’ characterization of them in this manner. [R.
13, PgID 7; R. 16, PgID 64].

be denied. [R. 27].
Braxton seeks appointment of counsel, alleging that he lacks funds to
hire an attorney and lacks sufficient knowledge of the law to properly
litigate his case on his own.
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 in a civil action; a
district court is vested with broad discretion to determine whether
“exceptional circumstances” warrant such an appointment. Lavado v.
Keohane, 992 F.2d 601, 604-06 (6th Cir. 1993). In making this
determination, the Court considers the nature of the case, the party’s ability
to represent himself, the complexity of the legal and factual issues, 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).
Having review Braxton’s case filings to this point, and considering the
relevant factors, the Court finds that Braxton does not show exceptional
circumstances that merit the appointment of counsel at this juncture. His
2

filings show he has sufficient knowledge of the laws and the facts of his
case, and he has already survived a motion to dismiss without the
assistance of an attorney. For these reasons, Braxton’s motion to appoint
counsel [R. 9] is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.

Dated: May 18, 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
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 May 18, 2015.
s/Marlena Williams
MARLENA WILLIAMS
Case Manager

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