Hoosier v. Liu et al

Filing 75

ORDER DENYING WITHOUT PREJUDICE Plaintiff's 74 Motion for Reconsideration--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DWAYNE HOOSIER,
Plaintiff
v.

Case No. 2:16-10688
District Judge Denise Page Hood
Magistrate Judge Anthony P. Patti

WENDY LIU, KAREN
RHODES, RENYU XUE,
BADAWI ABDELLATIF,
KIM FARRIS, and HELEN
SEARS
Defendants.
___________________________________/
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR
RECONSIDERATION OF THE APPOINTMENT OF COUNSEL (DE 74)
On July 14, 2016, the Court denied without prejudice Plaintiff’s motion for
appointment of counsel, concluding that he had not described any exceptional
circumstances to justify such a request. (DE 25.) On April 18, 2017, the Court
denied without prejudice Plaintiff’s motion for reconsideration for the appointment
of counsel, finding that Plaintiff has simply reiterated his initial arguments and has
not identified a palpable defect. (DE 51.) On June 1, 2018, Plaintiff filed a
second motion for reconsideration, in which he again asks the Court to grant his
request for appointment of counsel. (DE 74.)

To prevail on a motion for reconsideration under Local Rule 7.1, a movant
must demonstrate: 1) a palpable defect by which the court and the parties and other
persons entitled to be heard on the motion have been misled; and 2) that correcting
the defect will result in a different disposition of the case. E.D. Mich. LR
7.1(h)(3). “A palpable defect is a defect that is obvious, clear, unmistakable,
manifest or plain.” Witzke v. Hiller, 972 F. Supp. 426, 427 (E.D. Mich. 1997).
Motions for reconsideration should not be granted if they “merely present the same
issues ruled upon by the court, either expressly or by reasonable implication.”
E.D. Mich. LR 7.1(h)(3). But “parties cannot use a motion for reconsideration to
raise new legal arguments that could have been raised before a judgment was
issued.” Roger Miller Music, Inc. v. Sony/ATV Publ’g, 477 F.3d 383, 395 (6th Cir.
2007).
Here, Plaintiff presents many of the same arguments as in his first two
motions for appointment of counsel, namely that he has not been able to retain an
attorney, the case deals with complex subject matter, and conducting a trial in this
case would be difficult for an incarcerated person proceeding pro se. As indicated
in the Court’s prior orders, the above issues apply to nearly every pro se prisoner
proceeding in forma pauperis, and do not constitute extraordinary circumstances.
(DEs 25, 51.) See also Bennett v. Smith, 110 F. App’x 633, 635 (6th Cir. 2004)
(explaining that, with respect to prisoner civil rights cases in particular, “there is no
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right to counsel…. The appointment of counsel in a civil proceeding is justified
only by exceptional circumstances.”). As to Plaintiff’s argument again about
preparing for and conducting a trial, the Court notes, once again, that such a
concern is premature.
Plaintiff now correctly notes that he “has survived summary judgment on
failure to exhaust administrative remedies[,]” in that, on February 15, 2017, the
Court denied in part certain MDOC defendants’ summary judgment motions filed
on the basis of exhaustion as to Defendant Xue only, but granted the motions as to
several other defendants. (DEs 40, 42, 43, 53.)

The Court has also since granted

summary judgment as to another defendant on the basis of exhaustion (DE 65, 71),
and denied several defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 41(b)
for Plaintiff’s failure to participate in discovery. (DEs 68, 72.) However, as
Plaintiff also correctly notes, the Court has since entered a scheduling order which
establishes a discovery deadline of July 16, 2018 and a dispositive motion deadline
of August 16, 2018. (DE 73.) Accordingly, notwithstanding the Court’s partial
denial of a motion for summary judgment which was based on exhaustion of
administrative remedies, the Court has yet to entertain a post-discovery dispositive
motion on the merits under Fed. R. Civ. P. 56. Therefore, the case has not
survived all dispositive motion practice. For the reasons stated in its previous

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orders declining to recruit counsel (DEs 25, 51), the instant motion is again
DENIED without prejudice.
IT IS SO ORDERED.

Dated: June 19, 2018

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 June 19, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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