Perry v. Cousins

Filing 27

ORDER denying 14 Motion for Discovery and Interrogatories and Deposition Request ; denying 16 Motion to Appoint Counsel ; and denying 17 Motion Objecting to Defendant's Protective Order - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BISHOP PERRY,
Plaintiff,
v.
BRITTANY COUSINS,

CIVIL ACTION NO. 15-cv-13930
DISTRICT JUDGE AVERN COHN
MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant.
_____________________________/

OPINION AND ORDER DENYING PLAINTIFF’S
MOTION FOR DISCOVERY AND INTERROGATORIES AND DEPOSITION
REQUEST [14], MOTION FOR APPOINTMENT OF COUNSEL [16], AND MOTION
OBJECTING TO DEFENDANT’S PROTECTIVE ORDER [17]
Plaintiff Bishop Perry, currently a prisoner at the Thumb Correctional Facility in Lapeer,
Michigan, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendant
Brittany Cousins on November 5, 2015, alleging that she violated his First Amendment Rights
by filing a false misconduct ticket against him in retaliation for helping another prisoner file a
formal complaint against Defendant. (Docket no. 1.)

Defendant then filed a Motion for

Summary Judgment, claiming that the case should be dismissed because Plaintiff did not exhaust
his administrative remedies before filing suit, as required by 42 U.S.C. § 1997e(a). (Docket no.
11.)

District Judge Avern Cohn denied Defendant’s Motion on September 9, 2016, and

remanded this matter to the undersigned for further proceedings. (Docket no. 23.)
This matter is now before the Court on Plaintiff’s Motion for Discovery and
Interrogatories and Deposition Request, Motion for Appointment of Counsel, and Motion
Objecting to Defendant’s Protective Order. (Docket nos. 14, 16, and 17.) Defendant has not

responded to Plaintiff’s motions. All pretrial matters have been referred to the undersigned for
consideration. (Docket no. 26.) The Court has reviewed the pleadings and dispenses with oral
argument pursuant to Eastern District of Michigan Local Rule 7.1(f). The Court is now ready to
rule pursuant to 28 U.S.C. § 636(b)(1)(A).
I.

Plaintiff’s Motion Objecting to Defendant’s Protective Order [17]
On March 8, 2016, Defendant filed a Motion for Protective Order to stay discovery, and

thereby excuse Defendant from responding to Plaintiff’s February 10, 2016 discovery request,
until the Court ruled on Defendant’s pending Motion for Summary Judgment. (Docket no. 13.)
That same day, Plaintiff filed a Motion for Discovery and Interrogatories and Deposition
Request, which, as further discussed below, appears to be a separate discovery request filed with
the Court in an attempt to procure information, documents, and other items from Defendant.
(Docket no. 14.) On March 9, 2016, the Court granted Defendant’s Motion and stayed discovery
in this matter pending the resolution of Defendant’s Motion for Summary Judgment.
Apparently, Plaintiff did not receive notice of the Court’s order in this regard, as it was returned
to the Court as undeliverable on March 24, 2016. (Docket no. 15.) Plaintiff then filed a Motion
Objecting to Defendant’s Protective Order on March 25, 2016, which is, essentially, Plaintiff’s
response in opposition to Defendant’s Motion for Protective Order. (Docket no. 17.)
Defendant’s Motion for Summary Judgment was denied on September 9, 2016 (docket
no. 23), upon which the discovery stay automatically lifted, and Defendant’s obligation to
respond to Plaintiff’s February 10, 2016 discovery request was revived. Accordingly, to the
extent Defendant has not yet responded to Plaintiff’s February 10, 2016 discovery request, the
Court will order Defendant to do so within twenty-one (21) days of this Opinion and Order.
Additionally, because the Court has granted Defendant’s Motion for Protective Order to stay

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discovery, and the discovery stay has since been lifted, Plaintiff’s Motion Objecting to
Defendant’s Protective Order (docket no. 17) is moot, and the Court will deny it as such.
II.

Plaintiff’s Motion for Discovery and Interrogatories and Deposition Request [14]
Plaintiff’s February 10, 2016 discovery request consisted of three interrogatories and one

request for production. (See docket no. 13-2.) In his March 8, 2016 Motion for Discovery, filed
before the thirty-day deadline for Defendant’s response to the February 10, 2016 request,
Plaintiff seeks responses to three interrogatories and two requests for production. (Docket no.
14.) Although the discovery request set forth in Plaintiff’s Motion is substantially similar to
Plaintiff’s February 10, 2016 request but for one additional request for production, there is no
indication that Plaintiff served Defendant with this particular request before filing the instant
Motion. Plaintiff’s Motion is therefore more akin to a new discovery request filed with the Court
rather than a premature Motion to Compel Defendant’s responses to Plaintiff’s February 10,
2016 request.
The filing of such a discovery request with the Court, however, is improper under Eastern
District of Michigan Local Rule 26.2 and Federal Rule of Civil Procedure 5(d)(1). Discovery
requests must be made in accordance with Federal Rules of Civil Procedure 26 through 37. See
Fed. R. Civ. P. 26-37. Discovery should be served upon and responded to between the parties
without court involvement unless a problem develops that requires court intervention. That is,
Plaintiff’s discovery requests must first be directed to Defendant, not filed with the Court.
Because there is no evidence that Plaintiff served Defendant with the discovery request that is
the subject of his instant Motion, the Court will deny Plaintiff’s Motion for Discovery and
Interrogatories and Deposition Request.

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III.

Plaintiff’s Motion for Appointment of Counsel [16]
Plaintiff has also filed a Motion for Appointment of Counsel.

(Docket no. 16.)

Appointment of counsel for prisoners proceeding in forma pauperis is governed by 28 U.S.C. §
1915, which states that “[t]he court may request an attorney to represent any person unable to
afford counsel.” 28 U.S.C. § 1915(e)(1). The Sixth Circuit has stated:
Appointment of counsel in a civil case is not a constitutional right. It is a
privilege that is justified only by exceptional circumstances. In determining
whether ‘exceptional circumstances’ exist, courts have examined the type of case
and the abilities of the plaintiff to represent himself. This generally involves a
determination of the complexity of the factual and legal issues involved.
Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (internal quotations and citations
omitted). See also Glover v. Johnson, 75 F.3d 264, 268 (6th Cir. 1996) (citing Charles R.
Richey, Prisoner Litigation in the United States Courts 75 (1995) (“‘Prisoners have no statutory
right to counsel in civil rights cases. Instead, the appointment of counsel is within the court's
discretion.’”)).
Plaintiff seeks court-appointed counsel to assist him in conducting discovery in this
matter. (See docket no. 16 at 3-4.) But assistance in conducting discovery does not constitute an
exceptional circumstance here, as the factual and legal issues involved are not particularly
complex. Moreover, discovery in this matter is in its early stages, and, although it was necessary
to remind Plaintiff that he must conduct discovery in accordance with the Federal Rules of Civil
Procedure, supra, there is no indication that Plaintiff will have difficulty conducting discovery
with Defendant going forward.

Accordingly, appointment of counsel at this stage of the

litigation is unwarranted, and the Court declines to exercise its discretion to appoint counsel to
represent Plaintiff at this time. The Court will therefore deny Plaintiff’s Motion for Appointment
of Counsel without prejudice.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Discovery and
Interrogatories and Deposition Request [14] is DENIED, Plaintiff’s Motion for Appointment of
Counsel [16] is DENIED without prejudice, and Plaintiff’s Motion Objecting to Defendant’s
Protective Order [17] is DENIED as moot.
IT IS FURTHER ORDERED that to the extent Defendant has not yet responded to
Plaintiff’s February 10, 2016 discovery request, she must do so within twenty-one (21) days of
this Opinion and Order.

NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen
days from the date of this Order within which to file any written appeal to the District Judge as
may be permissible under 28 U.S.C. § 636(b)(1).

Dated: October 13, 2016

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Plaintiff and counsel of record
on this date.
Dated: October 13, 2016

s/ Lisa C. Bartlett
Case Manager

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