Griffin v. Klee et al
Filing
27
ORDER DENYING without Prejudice Plantiff's 26 Motion to Appoint Counsel. Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RANDLE GRIFFIN,
Case No. 2:14-cv-14290
District Judge Matthew Leitman
Magistrate Judge Anthony P. Patti
Plaintiff,
v.
PAUL KLEE, et al.,
Defendants.
___________________________________/
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S SECOND
MOTION FOR APPOINTMENT OF COUNSEL (DE 26)
This matter is before the Court for consideration of Plaintiff Randle Griffin’s
second motion for appointment of counsel. (DE 26.) 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 Defendants retaliated against him for exercising
his rights under the First Amendment. Since filing his complaint on November 6,
2014, the Court has denied Defendants’ motion to dismiss (DE 24), has granted
Plaintiff’s motion to amend complaint (DE 25), and has denied without prejudice
Plaintiff’s first motion to appoint counsel (DE 16).
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Plaintiff filed this second motion for appointment of counsel on May 20,
2015. (DE 26.) In his motion, he asks the court to appoint an attorney in this civil
matter for three main reasons. First, Plaintiff contends that he does not have access
to an adequate law library, and indicates that the law librarian does not allow other
prisoners to help Plaintiff with his legal matters. Second, he posits that he has
limited knowledge of the law and has been unable to secure the appointment of a
private attorney in this matter. Finally, Plaintiff points to the Court’s ruling on his
first motion for appointment of counsel, which noted that “[i]t is the practice of this
Court to defer any attempt to obtain counsel for pro se civil rights Plaintiffs until
after motions to dismiss or motions for summary judgment have been denied.”
(DE 16 at 1.) Plaintiff correctly points out that the Court recently denied
Defendants’ motion to dismiss and asserts that his motion for appointment of
counsel is now timely.
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
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
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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
pro se plaintiffs in civil cases under 28 U.S.C. § 1915(e), the exercise of this
authority is limited to exceptional situations.
1
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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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 his knowledge of the law is limited and 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. The claims in
Plaintiff’s complaint, though involving moderately complex areas of First
Amendment retaliation, are not so complicated as to be considered extraordinary.
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 citation. For example,
Plaintiff was able to successfully defend against Defendants’ motion to dismiss.
In fact, in the relevant Report and Recommendation, I specifically noted that
Plaintiff “rose to the occasion, taking the time to thoroughly brief” the issues in
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the motion to dismiss. (DE 23 at 10.) Additionally, the Court recently granted
Plaintiff’s motion to amend complaint, which was also clear and thoroughly
briefed. (DE 25.)
Plaintiff’s contention that he is being denied the ability to obtain legal help
from other prisoners is without merit. Plaintiff is only legally entitled to such
assistance “when the inmate receiving the assistance would otherwise be unable to
seek legal redress.” Herron v. Harrison, 203 F.3d 410, 415 (2000). As noted
above, Plaintiff has shown himself to be more than adequately capable of
litigating his case.
As to Plaintiff’s assertion that a request for appointment of counsel is
timely because he survived a motion to dismiss, such a request is generally
premature until dispositive motion practice has ended. Here, there have been no
summary judgment motions filed and the Court will not seek counsel for Plaintiff
until all dispositive motions have been denied, as was stated in the Court’s initial
order denying appointment of counsel. (DE 16.)
Accordingly, at this time, Plaintiff’s motion to appoint counsel is DENIED
WITHOUT PREJUDICE. (DE 26.) Plaintiff may petition the Court for the
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.
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IT IS SO ORDERED.
Dated: May 27, 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 May 27, 2015, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
(313) 234-5200
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