Roden v. Floyd et al
ORDER DENYING without Prejudice Plaintiff's 34 Motion to Appoint Counsel and setting Briefing Schedule--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:16-CV-11208
District Judge Victoria Roberts
Magistrate Judge Anthony P. Patti
MICHELLE FLOYD, et al.,
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL (DE 34) AND SETTING BRIEFING
SCHEDULE FOR SUR-REPLY
This matter is before the Court for consideration of Plaintiff Jonathan
Roden’s motion for appointment of counsel. (DE 34.) For the reasons that follow,
Plaintiff’s motion to appoint counsel is DENIED WITHOUT PREJUDICE to
renewal after a summary judgment ruling.
Plaintiff, a state prisoner who is proceeding in forma pauperis, brings claims
under 42 U.S.C. § 1983, alleging that Defendants retaliated against him for filing
grievances related to his tutoring of other prisoners and attending college classes.
Defendants filed a motion for summary judgment, which was fully briefed on
December 6, 2016 and is awaiting the Court’s review. Also pending is Plaintiff’s
motion to compel Defendants to provide additional interrogatory answers and to
produce documents, which was fully briefed on March 15, 2017.
Plaintiff filed the instant motion on April 7, 2017, asking the court to appoint
an attorney in this civil matter. (DE 34.) Plaintiff argues generally that he is
indigent and has limited knowledge of the law. His main argument, however,
centers around discovery that he contends “directly contradicts Defendants[’]
Summary Judgment Motion, Affidavits, and Exhibits.” (Id. at ¶ 3.) Plaintiff
asserts that he has uncovered evidence, including discovery produced by
Defendants, as well as the deposition testimony of Kevin Rose and Dr. D. Clark,
that contradicts the sworn statement of Michelle Floyd, as set forth in Defendants’
motion for summary judgment. He provides as attachments his own affidavit, a
misconduct report, Defendants’ response to interrogatories, and emails from prison
officials about Plaintiff’s transfer. Plaintiff asserts that Defendants’ “bad faith
affidavit, mischaracterizing the facts, and omitting emails” represents an
exceptional circumstance justifying the appointment of counsel.
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
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) (emphasis added); 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 appointment of counsel in a civil case, therefore,
“is a privilege not a right.” Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir.
1987) (internal quotation omitted).
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).
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.
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.
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 at this time. First, as
to Plaintiff’s general claims that he is indigent and unfamiliar with the law, those
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 are not particularly complex, involving allegations of a retaliatory
transfer in violation of the First Amendment.
Moreover, Plaintiff has on several occasions illustrated his ability to
articulate his claims and adequately communicate his requests to the Court in a
clear and well-organized manner, and with appropriate legal citation.
example, he has successfully moved the Court to allow him to depose non-party
witnesses. (DE 29.) Further, he has completed extensive discovery in this matter,
as shown in the instant motion. His pleadings and motions all contain citations to
relevant legal authority and are well organized.
Importantly, it is unclear to the Court what else counsel could do at this
juncture. Plaintiff has a pending motion to compel that addresses the discovery
issues he cites in the instant motion. He has received sufficient discovery at this
point, he believes, to contradict Defendants’ pending motion for summary
judgment. Indeed, he received the information as a result of his successful motion
to depose non-party witnesses, which occurred after the motion for summary
judgment was fully briefed. Rather than granting the instant motion, I will allow
Plaintiff to file a one-time sur-reply to Defendants’ motion for summary judgment
to be filed with the Court ON OR BEFORE MAY 10, 2017. The sur-reply shall
be five pages in length, plus attachments, and shall be limited only to highlighting
or addressing the information and attachments provided in his motion for
appointment of counsel.
Accordingly, at this time, Plaintiff’s motion to appoint counsel is DENIED
WITHOUT PREJUDICE. (DE 34.) 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.
IT IS SO ORDERED.
Dated: April 14, 2017
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
I hereby certify that a copy of the foregoing document was sent to parties of record
on April 14, 2017, electronically and/or by U.S. Mail.
Case Manager for the
Honorable Anthony P. Patti
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