Burley v. Williams et al
ORDER Denying without Prejudice Plaintiff's 71 Motion the Court to Recruit Pro Bono Counsel--Signed by Magistrate Judge Anthony P. Patti. (MWil)
Case 2:18-cv-12239-GCS-APP ECF No. 72, PageID.737 Filed 01/06/21 Page 1 of 8
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
EDWARD DONALD BURLEY,
Case No. 2:18-cv-12239
District Judge George Caram Steeh
Magistrate Judge Anthony P. Patti
CARYLON WILLIAMS, et al.,
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR
THE COURT TO RECRUIT PRO BONO COUNSEL (ECF No. 71)
Edward Donald Burley is currently incarcerated at the Michigan Department
of Corrections (MDOC) Ionia Correctional Facility (ICF).1 On July 17, 2018,
while incarcerated at Parnall Correctional Facility (SMT), Plaintiff Burley filed
the instant lawsuit against several Macomb Correctional Facility (MRF)
defendants. (ECF No. 1; see also DE 33.) Plaintiff is proceeding in forma
pauperis. (ECF No. 6.) This case has been referred to me for all pretrial matters.
(ECF Nos. 14, 65.)
(See ECF No. 55; www.michigan.gov/corrections, “Offender Search,” last visited
Jan. 5, 2021.)
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On August 12, 2019, Plaintiff filed an amended complaint against named
Defendants Michelle Williams-Ward, Randall Haas, George Stephenson, Regina
Jenkins-Grant, and Carylon Williams. (ECF No. 49 at 1, 3-5; see also DE 16.)2
The alleged facts underlying Plaintiff’s complaint begin with his March 26, 2015
arrival at MRF and continue through a June 12, 2015 refusal to process his legal
mail. (ECF No. 49 ¶¶ 16-25.) Plaintiff’s claims for relief are based upon (1) First
Amendment access to courts; (2) First Amendment retaliation; and, (3) Fourteenth
Amendment equal protection. (ECF No. 49 ¶¶ 26-54.) Among Plaintiff’s requests
for relief are referral to the Pro Se Early Mediation Program, as well as awards of
compensatory and punitive damages. (ECF No. 49 at 19-20.)
On August 28, 2020, Judge Steeh entered an order granting in part and
denying in part the MDOC Defendants’ September 3, 2019 motion to dismiss.
(ECF No. 59.) On October 5, 2020, he entered an order granting Defendants’
motion for leave to conduct discovery and file a second motion for summary
judgment. (ECF No. 64.)
On October 23, 2020, Defendants filed a motion to amend the scheduling
order. (ECF No. 68.) I granted this motion on October 26, 2020, although I also
noted that no further extensions would be permitted.
As such, “S. Williams” has been terminated as a Defendant. Also, while the
caption of Plaintiff’s amended complaint lists “et al.,” “[t]he title of the complaint
must name all the parties[.]” Fed. R. Civ. P. 10(a).
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The Undersigned certified completion of pretrial proceedings. (ECF No.
61.) However, on September 4, 2020, Defendants filed a motion to conduct
limited discovery and for leave to file a second motion for summary judgment.
(ECF No. 63.) On October 26, 2020, Judge Steeh denied Plaintiff’s motion for
reconsideration. (ECF No. 69.)3
On two separate occasions, once in 2019 and again in 2020, the Court has
denied without prejudice Plaintiff’s motions to appoint counsel. (ECF No. 50, 53,
56 and 64.) Currently before the Court is Plaintiff’s third such request – his
October 30, 2020 motion for the Court to recruit pro bono counsel. (ECF No. 71.)
He contends that “clear extraordinary circumstances exist,” as he “has been and
continues to be denied access to legal research, materials, and other information
necessary to litigate his case in this Court[,]” seemingly due to a COVID-19
related lockdown at ICF that began October 21, 2020. (ECF No. 71, PageID.732.)
It is undisputed that, at least as of October 22, 2020, ICF was “in isolation
lockdown for an unknown timeframe.” (ECF No. 68, PageID.718.)
On October 30, 2020, Plaintiff filed a response (ECF No. 70), which, inter alia,
seems to question the Court’s October 5, 2020 order (ECF No. 64), if not also the
October 26, 2020 order (ECF No. 69).
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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)
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(citations omitted).4 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. To be
sure, Plaintiff makes several points in his favor. Setting aside his mention of a
declaration in support of this motion, which the Court has not been able to locate,
Plaintiff claims that his “extraordinary circumstances” include: (1) “legal
materials . . . being illegally withheld from [him] for prolonged periods of time;”
(2) he is “being denied any access to conduct legal research due to a COVID-19
‘Lockdown’[;]” and, (3) he has “absolutely no ability to research Defendants[’]
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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Brief[’s] Case Law citations[,]” such as Defendants’ October 23, 2020 response
(ECF No. 67) or Defendants’ October 23, 2020 motion (ECF No. 68). (Id.,
PageID.734.) Moreover, he claims that he will require “classified MDOC
documents to substantiate his Fourteenth Amendment Equal Protection Claim,”
specifically “Legal Disbursement Authorization[s] from minority prisoners” to
demonstrate that Defendant Williams-Ward “processed similar legal disbursements
for African American and Latino prisoners[,]” in support of which he cites White v.
Jindal, No. 13-CV-15073, 2015 WL 181670, at *8 (E.D. Mich. Jan. 14, 2015)
(Majzoub, M.J.) (“grant[ing] Plaintiff's Motion to Appoint Counsel[,]” while
noting that, “[o]nce counsel has been appointed, Defendants will produce [other
inmates' disciplinary records] to Plaintiff's counsel for attorneys eyes only.”).
(ECF No. 71, PageID.734-735.)
Nonetheless, however unfortunate the consequences of confinement in the
midst of a pandemic are to Plaintiff’s ability to litigate, although excepting the
allegation that his legal materials “are being illegally withheld,” the same
circumstances likely apply to any currently confined prisoner litigant. Moreover,
neither the discovery deadline nor the dispositive motion deadline has expired.
Although Plaintiff’s original complaint survived Defendants’ January 23, 2019
motion for partial summary judgment (ECF No. 1, 23, 44), and although Plaintiff’s
now-operative pleading survived Defendants’ September 3, 2019 motion to
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dismiss (ECF Nos. 49, 51, 59), the Court has since granted Defendants’ motion for
leave to conduct discovery and file a second motion for summary judgment (ECF
Nos. 63, 64). Moreover, on October 26, 2020, by way of a text-only order, the
Undersigned granted Defendants’ motion to amend the scheduling order (ECF No.
68) and set the discovery deadline for March 15, 2021 and the dispositive motion
cut-off for April 15, 2021. Generally, due to the limited number of pro bono
counsel who are willing and available and the large number of prisoners who
would like the help of volunteer attorney services, the Court waits to seek pro bono
counsel for Plaintiff until the dispositive motion deadline has passed and/or any of
Plaintiff’s claims survive dispositive motion practice.
Upon consideration, Plaintiff’s October 30, 2020 motion for the Court to
recruit pro bono counsel (ECF No. 71) is DENIED WITHOUT PREJUDICE.
Plaintiff may petition the Court for the recruitment of pro bono counsel if this case
survives the anticipated dispositive motion practice, proceeds to trial, or other
circumstances demonstrate such a need in the future. Notwithstanding this ruling,
and although the Undersigned’s October 26, 2020 text-only order provided that no
further extensions would be permitted, in light of the continued circumstances of
the COVID-19 pandemic and the allegations Plaintiff makes within the instant
motion, if needed, the parties are encouraged to engage in discussion about and
Case 2:18-cv-12239-GCS-APP ECF No. 72, PageID.744 Filed 01/06/21 Page 8 of 8
attempt to agree to: (1) an extension of dates; or, (2) a stay of the present action
until Plaintiff has the access he needs to engage in this litigation.
IT IS SO ORDERED.
Dated: January 6, 2021
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
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