Weatherspoon v. LNU et al

Filing 92

ORDER Denying Plaintiff's 79 MOTION for Appointment of Counsel for Appeal and 89 Application to Proceed Without Prepaying Fees or Costs on Appeal. 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.
SUSAN GEORGE, et al.,
Defendants.
_________________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF
COUNSEL FOR APPEAL (ECF #79) AND APPLICATION TO PROCEED
WITHOUT PREPAYING FEES OR COSTS ON APPEAL (ECF #89)
On August 31, 2015, this Court entered an order granting summary
judgment in favor of Defendants Jon Pavitt, Gail Wang, Eutrilla Taylor, and Diana
Hering (the “August 31 Order”). (See ECF #67.) On October 5, 2015, the Court
denied

Plaintiff

Morris

Weatherspoon’s

(“Weatherspoon”)

Motion

for

Reconsideration of the August 31 Order (the “October 5 Order”). (See ECF #74.)
On October 22, 2015, Weatherspoon filed (1) a Notice of Appeal from the
August 31 Order and the October 5 Order, and (2) a Motion for the Appointment
of Counsel for Appeal (the “Motion”) (ECF #79). Weatherspoon also filed an
Application to Proceed Without Prepaying Fees or Costs on Appeal on November
16, 2015 (the “Application”). (ECF #89.) For the reasons stated below, the Court
DENIES the Motion and the Application.
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A.

The Motion for Appointment of Counsel on Appeal

In the Motion, Weatherspoon asserts that the Court should appoint him
appellate counsel because (1) he cannot afford counsel, (2) the issues in this case
are complex, (3) he has limited access to the prison law library due to his
placement in administrative segregation, and (4) he has limited knowledge of the
law. (See Motion, ECF # 79 at 1, Pg. ID 543.) But as the Court has already
explained to Weatherspoon on three separate occasions, these reasons are not
sufficient to justify the appointment of counsel.1 The appointment of counsel in a
civil case “is not a constitutional right.” Lavado v. Keohane, 992 F.2d 601, 605-06
(6th Cir. 1993).

“It is a privilege that is justified only by exceptional

circumstances.” Id. No such circumstances exist here.2
B.

The Application to Proceed In Forma Pauperis

This Court previously granted Weatherspoon leave to proceed in forma
pauperis. (See ECF #4.) Under Federal Rule of Appellate Procedure 24(a)(3), that
prior authorization permits Weatherspoon to “proceed on appeal in forma pauperis

1

See Order Denying Plaintiff’s Motion for Appointment of Counsel, ECF #23 at 1,
Pg. ID 238; Order Denying Plaintiff’s Motion for Appointment of Counsel, ECF
#66 at 1, Pg. ID 452; October 5 Order, ECF #74 at 6, Pg. ID 504.
2

The Court also is not inclined to appoint Weatherspoon appellate counsel at this
time because there is authority indicating that Weatherspoon’s Notice of Appeal
“divests this Court of jurisdiction to consider his motion for the appointment of
counsel.” See Wagner v. Smith, No. 06-10514, 2007 WL 3124659, at *2 (E.D.
Mich. Oct. 25, 2007).
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without further authorization” unless this Court certifies, among other things, that
his appeal “is not taken in good faith.”

The Court now certifies that

Weatherspoon’s appeal from the August 31 Order and the October 5 Order is not
taken in good faith.
Weatherspoon’s appeal is not taken in good faith because it is premature.
The August 31 Order and the October 5 Order did not dispose of all of the claims
in the case; they are not final orders.3 Thus, Weatherspoon has no appeal of right
from those orders, and he may not appeal from them by filing a Notice of Appeal
under Rule 4 of the Federal Rules of Appellate Procedure. See Porter v. Wright,
968 F.2d 1215 (Table), 1992 WL 146626, at *1 (6th Cir. June 24, 1992) (citing
Oak Constr. Co. v. Huron Cement Co., 475 F.2d 1220, 1221 (6th Cir. 1973) (per
curiam)). Simply put, there is no good faith basis for Weatherspoon’s attempt to
pursue an appeal of right at this time.

3

Five Defendants still remain in this case, which include Angela Vettraino, Susan
George, Tamara Scheppelman, Dr. Badawi Abdellatif, and a Defendant
Weatherspoon has identified only as “Woern (Social Worker).” (See Order
Directing MDOC to Provide Additional Information Regarding Defendants Woern,
Scheppelman, and George, ECF #88 at 1, Pg. ID 642.) 
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Accordingly, IT IS HEREBY ORDERED that the Motion (ECF #79) and
the Application (ECF #89) are DENIED.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: December 10, 2015

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on December 10, 2015, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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