Burns v. Brewer et al

Filing 46

ORDER Affirming Magistrate Judge's Order Denying Motion to Appoint Counsel. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM BURNS,

2:18-cv-10937

Plaintiff,

HON. TERRENCE G. BERG

v.
SHAWN BREWER, et al.,
Defendants.

ORDER AFFIRMING
MAGISTRATE JUDGE’S
ORDER DENYING MOTION
TO APPOINT COUNSEL

William Burns, a pro se plaintiff presently in the custody of the
Michigan Department of Corrections (“MDOC”), claims that Defendants,
employees of the MDOC, prohibited him from receiving proofs of books
he has authored, in violation of his civil rights. The case is now before the
Court on Plaintiff William Burns’s timely objections to Magistrate Judge
Elizabeth A. Stafford’s Order denying without prejudice his motion to
appoint counsel. ECF Nos. 18, 21. For reasons described below, Plaintiff’s
objections will be overruled, and the Magistrate Judge’s Order affirmed.
DISCUSSION
Rule 72(a) of the Federal Rules of Civil Procedure provides that,
“[w]hen a pretrial matter not dispositive of a party’s claim or defense is
referred to a magistrate judge to hear and decide, the magistrate judge
must promptly conduct the required proceedings and, when appropriate,

issue a written order stating the decision.” If a party for any reason
objects to the magistrate judge’s order, he or she “may serve and file
objections to the order within 14 days after being served with a copy.”
Fed. R. Civ. P. 72(a). The district judge will then “consider timely
objections and modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” Id.
The non-dispositive Order Plaintiff has objected to is Magistrate
Judge Stafford’s denial, without prejudice, of his motion to appoint
counsel. See ECF No. 18 (Oct. 15, 2018 Order). In denying Plaintiff’s
motion, the Magistrate Judge reasoned that courts generally do not
appoint counsel in a civil case absent a showing of “exceptional
circumstances.” ECF No. 18 PageID.162; see Lavado v. Keohane, 992 F.2d
601, 6015 (6th Cir. 1993). And Plaintiff, according to Magistrate Judge
Stafford, at least at this juncture has not established exceptional
circumstances warranting appointment of counsel. ECF No. 18
PageID.162.
Plaintiff timely filed objections to the Magistrate Judge’s Order
denying appointment of counsel. See ECF No. 21 (received by Clerk’s
Office on October 30, 2018); Fed. R. Civ. P. 6(d) (explaining that when
service is made by mail, an additional three days will be added to the
period of time in which a party must act). In Plaintiff’s objections, he
refers the Court to specific pages referenced in an amended motion for
appointment of counsel that was docketed after Magistrate Judge
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Stafford issued the Order denying his original motion for appointment of
counsel. ECF No. 21 PageID.188 (Pl.’s Objections) (referencing ECF No.
19). Because Magistrate Judge Stafford issued her Order denying the
motion to appoint counsel before Plaintiff’s amended motion to appoint
counsel was filed, any arguments presented in the amended motion were
never presented to the Magistrate Judge. Under this district’s
jurisprudence, “[a] magistrate judge’s decision should not be disturbed on
the basis of arguments not presented to the magistrate judge.” Exide
Tech. v. Kmart Corp., No. 07-CV-11269, 2008 WL 2511094, *1 (E.D. Mich.
Jun. 23, 2008) (citing Whittum v. Saginaw Cty., No. 02-10313-BC, 2005
WL 3271810, at *4 (E.D. Mich. Nov. 22, 2005)).
Additionally, the Court has reviewed Plaintiff’s amended motion for
appointment of counsel and finds that appointment of counsel is not
warranted at this time. There is no constitutional right to counsel in civil
proceedings and the Sixth Circuit instructs that appointment of counsel
in such a proceeding “is justified only in exceptional circumstances.”
Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); Bennett v. Smith,
110 F. App’x 633, 635 (6th Cir. 2004). Determining whether a pro se
plaintiff

has

demonstrated

“exceptional

circumstances”

involves

“consideration of the complexity of the factual and legal issues involved
and an examination of the type of case and the abilities of the plaintiff to
represent himself.” Lince v. Youngert, 136 F. App’x 779, 782 (6th Cir.
2005) (internal quotations omitted) (quoting Lavado, 992 F.2d at 604–
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05). Applying these factors, the Court finds Plaintiff has not described
circumstances that would justify appointing counsel. Plaintiff’s claims
are straightforward and involve factual and legal allegations that are
comparatively narrow in scope—denial of his civil rights in connection
with MDOC employees’ decision that Plaintiff would not be given proofs
of books that were mailed to him because they posed “a threat to the good
order of the facility.” ECF No. 1 PageID.5. Further, Plaintiff has
demonstrated skill in clearly and comprehensively explaining the factual
and legal bases for his claims. The Court concludes he will be able to
adequately litigate his claims without the assistance of counsel.
CONCLUSION
For these reasons, Plaintiff William Burns’s motion (ECF No. 21),
construed as objections to the Magistrate Judge’s Order filed in
accordance with Rule 72(a) of the Federal Rules of Civil Procedure, is
DENIED and his objections are OVERRULED. The Magistrate Judge’s
Order (ECF No. 18) is accordingly AFFIRMED.

Dated: August 19, 2019

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

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Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served on August 19, 2019.
s/A. Chubb
Case Manager

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