Weatherspoon v. Dinsa et al

Filing 70

ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S 64 Motion to Appoint Counsel; DENYING AS MOOT 65 Motion to Extend the Time Filing a Notice of Appeal; DENYING AS MOOT 66 Motion for Alternate Service; DENYING AS MOOT 67 Motion for Expedited Consideration of Motion for Service. Signed by Magistrate Judge R. Steven Whalen. (CCie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MORRIS WEATHERSPOON,
#471817,
CIVIL ACTION NO. 14-12756
Plaintiff,
DISTRICT JUDGE LAURIE J. MICHELSON
v.
MAGISTRATE JUDGE R. STEVEN WHALEN
DINSA, et al.,
Defendants.
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ORDER
Plaintiff Morris Weatherspoon, a pro se prison inmate in this action filed under 42
U.S.C. § 1983, has filed the following motions:
-Motion for Appointment of Counsel [Doc. #64].
-Motion to “Recognize and Consider,” construed as motion to file untimely notice
of appeal [Doc. #65].
-Motion for Alternative Service [Doc. #66].
-Motion for Expedited Consideration of Motion for Service [Doc. #67].
A.

Untimely Appeal [Doc. #65]

Plaintiff alleges deliberate indifference to his serious medical needs, in violation of
the Eighth Amendment. All of the Defendants have been dismissed without prejudice, for
failure to exhaust administrative remedies, except for Defendant Dr. Jindell, who has not
been served.
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The Court entered its Opinion and Order of dismissal on September 25, 2015; Plaintiff
filed a Notice of Appeal October 30, 2015, outside the 30-day limit under Fed.R.App.P.
4(a)(1). However, because Defendant Jindell has not been served, and the complaint has
not been adjudicated as to him, there is no final judgment on the merits disposing of all
Defendants and all issues, as required under 28 U.S.C. § 1291. Therefore, construing
Plaintiff’s motion to “recognize and consider” extenuating circumstances [Doc. #65] as a
motion to extend the time for filing a Notice of Appeal, the motion is DENIED AS
MOOT.
B.

Alternative Service and Expedited Consideration [Doc. #66 and #67]

Plaintiff asks that the United States Marshal be ordered to serve Defendant Jindell.
He already has. See Doc. #36. Apparently, Dr. Jindell is no longer employed with the
Michigan Department of Corrections [“MDOC”]. On October 26, 2015, the Court entered
a second order for the MDOC to provide Dr. Jindell’s last known address to the U.S.
Marshal, and for the Marshal to attempt service [Doc. #60]. Therefore, Plaintiff’s motions
regarding service [Doc. #66 and Doc. #67] are DENIED AS MOOT.

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C.

Request for Counsel [Doc. #64]

In its September 25, 2015 Opinion and Order, the Court denied Plaintiff’s previous
request for counsel without prejudice. At this point in the proceedings, Plaintiff’s request
is still premature, in that Defendant Jindell has not yet been served. His motion for
appointment of counsel [Doc. #64] is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.

s/ R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Dated: November 9, 2015

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record on
November 9, 2015, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager to the
Honorable R. Steven Whalen

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