Weatherspoon v. LNU et al

Filing 74

ORDER (1) Denying Plaintiff's 73 Motion for Reconsideration; and (2) Overruling Plaintiff's 68 and 69 Objections to the Magistrate Judge's 65 and 66 Orders Granting in Part and Denying in Part Plaintiff's Motion for Extension of Time and Denying Plaintiff's Motion for Appointment of Counsel. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MORRIS WEATHERSPOON,
Plaintiff,

Case No. 14-cv-12789
Hon. Matthew F. Leitman

v.
GEORGE LNU, et al.,
Defendants.
_________________________________/
ORDER (1) DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION (ECF #73); AND (2) OVERRULING PLAINTIFF’S
OBJECTIONS (ECF ##68, 69) TO THE MAGISTRATE JUDGE’S ORDERS
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION
FOR EXTENSION OF TIME (ECF #65) AND DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF COUNSEL (ECF #66)
In this action, Plaintiff Morris Weatherspoon (“Weatherspoon”) – an inmate
in the custody of the Michigan Department of Corrections (“MDOC”) – alleges
that several MDOC prison officials violated his First and Eighth Amendment
Rights. (See ECF #1 at 2-4, Pg. ID 2-4). Specifically, Weatherspoon alleges that
the Defendants restricted his access to, and failed to comply with, the prison’s
grievance-filing process in violation of the First Amendment and were deliberately
indifferent to his medical needs in violation of the Eighth Amendment. (See id. at
4-8, Pg. ID 4-8.)

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Weatherspoon properly served Defendants Jon Pavitt (“Pavitt”), Gail Wang
(“Wang”), Eutrilla Taylor (“Taylor”), and Diana Hering (“Hering”) with his
Complaint. (See ECF ##11-14, Pg. ID 109-12.) On November 3, 2014, Pavitt,
Wang, Taylor, and Hering submitted a joint Motion for Summary Judgment (see
ECF #18 at 1, Pg. ID 137) to the assigned Magistrate Judge, who issued a Report
and Recommendation (“R&R”) on April 24, 2015 recommending that the Court
grant the motion in their favor. (See ECF #49 at 11-12, Pg. ID 341-42.) The Court
issued an Opinion and Order adopting the Magistrate Judge’s R&R as the opinion
of the Court and granted summary judgment in favor of Defendants Pavitt, Wang,
Taylor, and Hering on the grounds that they were entitled to qualified immunity on
all of Weatherspoon’s claims. (See ECF #67 at 11, Pg. ID 465.) On September 11,
2015, Weatherspoon filed a document that he titled an “Objection” to the Court’s
order adopting the R&R. (See ECF #73 at 1, Pg. ID 492.) In the Objection,
Weatherspoon complains that the Court erred in adopting the R&R. (Id.)
Weatherspoon also properly served his Complaint on Defendant Angela
Vettraino (“Vettraino”) on July 16, 2015.

(See ECF #55 at 1, Pg. ID 398.)

Vettraino then filed her own motion for summary judgment on August 4, 2015 and
adopted the arguments that Defendants Pavitt, Wang, Taylor, and Hering made in
their motion. (See ECF #61 at 7, Pg. ID 425.) The Magistrate Judge originally
ordered Weatherspoon to respond to Vettraino’s motion by August 28, 2015, but
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he later agreed to extend the response deadline to October 30, 2015. (See ECF #65
at 1-2, Pg. ID 449-50). Weatherspoon now objects that the extension to October
30th is too short. (See ECF #68 at 1-2, Pg. ID 467-68).
Weatherspoon still has not served Defendants Susan George (“George”),
Tamara Scheppelman (“Scheppelman”), or a Defendant whom Weatherspoon has
identified only as “Woern,” with the Complaint in this case. Weatherspon was
originally required to provide the correct address for these Defendants by August
24, 2015. However, the Magistrate Judge has agreed to extend that deadline to
October 30, 2015. (See ECF #65 at 1-2, Pg. ID 449-50). Weatherspoon also
objects that this extension is too short. (See ECF #68 at 1-2, Pg. ID 467-68).
Finally, Weatherspoon filed a motion to appoint counsel on August 20,
2015. (See ECF #64 at 1, Pg. ID 438.) The Magistrate Judge issued an Order
denying Weatherspoon’s motion on August 25, 2015. (See ECF #66 at 2, Pg. ID
453). Weatherspoon has also objected to the Magistrate Judge’s Order denying
appointment of counsel. (See ECF # 66 at 1, Pg. ID 481.)
For

the

reasons

provided

below,

the

Court

(1)

OVERRULES

Weatherspoon’s Objection (ECF #68) to the Order Granting in Part and Denying in
Part Plaintiff’s Motion for Extension of Time (ECF #65), (2) OVERRULES
Weatherspoon’s Objection (ECF #69) to the Order Denying Motion for
Appointment of Counsel (ECF #66), (3) deems the Objection (ECF #73) to be a
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motion for reconsideration of the Court’s order adopting the R&R, and (4)
DENIES the motion for reconsideration.
A.

The Magistrate Judge’s Sixty-Day Time Extensions Provide
Weatherspoon Ample Time to Respond to Vettraino’s Motion for
Summary Judgment and to Provide Correct Addresses for the
Unserved Defendants
The Magistrate Judge gave Weatherspoon an additional sixty days to

respond to Vettraino’s motion for summary judgment and to provide correct
addresses for the unserved Defendants. The Magistrate Judge determined that the
sixty-day extension was sufficient to account for Weatherspoon’s pro se status, his
alleged “pain with disability and disfigurement both mentally and physically,” and
his temporary placement in administrative segregation. (See ECF #65. at 1-2, Pg.
ID 449-50.)
Weatherspoon wants more time – until January 16, 2016 – to respond to the
motion and provide the addresses. (See ECF #68 at 1-2, Pg. ID 467-68.)
Weatherspoon claims that a jury trial for another action in which he is a litigant
(which is scheduled for October 26, 2015) interferes with his ability to comply
with the Magistrate Judge’s Order.

(Id.)

He also asserts that the Michigan

Attorney General has not responded to his discovery requests for the remaining
Defendants’ addresses. (Id.)
The Court concludes that the Magistrate Judge’s sixty-day extension
properly accounted for Weatherspoon’s circumstances and provided him with a
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lengthy and reasonable time period in which to comply with the Court’s orders.
Moreover, Weatherspoon’s voluminous filings in this case demonstrate to the
Court that he has ample time to devote to this case. Thus, the Court overrules
Weatherspoon’s objection to the Order requiring him to respond to Vettraino’s
motion for summary judgment and provide correct addresses for the unserved
Defendants by October 30, 2015.
B.

Weatherspoon’s Case Does Not Merit Appointment of Counsel
Weatherspoon filed a motion to appoint counsel on October 29, 2014. (See

ECF #15 at 1, Pg. ID 113.) The Magistrate Judge denied that motion on November
7, 2014, but included the following caveat: “Should Weatherspoon’s case survive
dispositive motion practice and proceed to trial, he may file a renewed motion for
the appointment of counsel at that time.” (ECF #23 at 2, Pg. ID 239.)
Weatherspoon filed a renewed motion to appoint counsel on August 20,
2015. (See ECF #64 at 1, Pg. ID 438.) Once again, the Magistrate Judge denied
Weatherspoon’s motion because Weatherspoon had not survived dispositive
motion practice. (See ECF #66 at 2-3, Pg. ID 452-53.) Weatherspoon objects to
the Magistrate Judge’s denial of his motion to appoint counsel, arguing that prison
officials are intentionally hindering his efforts to pursue non-frivolous claims by
restricting his access to the prison law library and photocopier. (See ECF #69 at 12, Pg. ID 481-82.)
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Appointment of counsel in a civil case is not a constitutional right. It is a
privilege that is justified only by exceptional circumstances, which depend on the
type of case, the plaintiff’s abilities to represent himself, the complexity of the
factual and legal issues involved, and the claim’s relative merits.

Lavado v.

Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (internal quotations and citations
omitted).” The Court is not persuaded that Weatherspoon’s claims warrant the
appointment of counsel at this time. As a result, Weatherspoon’s objection is
overruled.
C.

The Court Denies Weatherspoon’s Motion for Reconsideration Because
He Has Identified No Palpable Defect With the Court’s Opinion and
Order Adopting the Magistrate Judge’s R&R
On August 31, 2015, this Court issued an Order adopting the Magistrate

Judge’s Report and Recommendation recommending that this Court grant
summary judgment in favor of Defendants Hering, Wang, Pavitt, and Taylor
because they were entitled to qualified immunity with respect to all of
Weatherspoon’s claims. (See ECF #67 at 2-3, Pg. ID 456-57.)
On September 11, 2015, Weatherspoon filed his “Objection to the Adoption
the [sic] Report and Recommendation as the the [sic] Opinion of the Court (Doc.
No. 67) Consistent to [sic] Fed. R. Civ. P., Rule 72; E.D. MI. L.R. 72.1(d)(2).”
(ECF #73 at 1, Pg. ID 492.) The Court will construe Weatherspoon’s objection as
a motion for reconsideration of the Opinion and Order adopting the R&R (the
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“Motion for Reconsideration”), though the motion is styled as an objection to the
Magistrate Judge’s R&R.

On a motion for reconsideration, a movant must demonstrate that the court
was misled by a “palpable defect.” E.D. Mich. L.R. 7.1(h)(3). A “palpable defect”
is a defect that is obvious, clear, unmistakable, manifest, or plain. See Witzke v.
Hiller, 972 F. Supp. 426, 427 (E.D. Mich. 1997). The movant must also show that
the defect, if corrected, would result in a different disposition of the case. E.D.
Mich. L.R. 7.1(h)(3). A motion for reconsideration is not a vehicle to rehash old
arguments, nor to proffer new arguments or evidence that the movant could have
presented earlier. See Sault Ste. Marie v. Engler, 146 F.3d 367, 374 (6th Cir.
1998).
Weatherspoon has not identified any palpable defect with the Court’s
adoption of the Magistrate Judge’s R&R. His Motion for Reconsideration simply
rehashes arguments this Court has already determined to be meritless.

For

example, Weatherspoon claims that prison officials denied him adequate medical
care when they “only provided 4 tablets” of pain relief medication. (ECF #73 at 4,
Pg. ID 495).

The Court rejected this argument because it “boils down to

[Weatherspoon’s] apparent disagreement with the type and/or quantity of pain
medication” he received. (ECF #67 at 6, Pg. ID 460.) Additionally, Weatherspoon
reasserts that the Defendants retaliated against him in violation of the First
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Amendment by failing to process his grievance forms. (See ECF #73 at 5, Pg. ID
496.) The Court also rejected this argument because Weatherspoon never provided
any evidence that the Defendants took adverse action or harbored any animus
against him. (See ECF #67 at 11, Pg. ID 465.)
Even a generous reading of Weatherspoon’s Motion for Reconsideration
reveals that he has done nothing more than reargue his Eighth Amendment
deliberate indifference claims and his First Amendment retaliation claims.
Weatherspoon has therefore failed to show a palpable defect with the Court’s
Order adopting the R&R and the Court denies his Motion for Reconsideration.
CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that:
 Weatherspoon’s Objection to the Magistrate Judge’s Order Granting in Part
and Denying in Part Plaintiff’s Motion for Extension of Time (ECF #68) is
OVERRULED.
 Weatherspoon shall provide the correct addresses for all unserved
Defendants and respond to Defendant Vettraino’s Motion for Summary
Judgment by October 30, 2015;
 Weatherspoon’s Objection to the Magistrate Judge’s Order Denying
Plaintiff’s

Motion

for

Appointment

OVERRULED; and
8

of

Counsel

(ECF

#69)

is

 Weatherspoon’s Motion for Reconsideration (ECF #73) is DENIED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: October 5, 2015
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on October 5, 2015, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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