Smith v. Davidson et al

Filing 71

ORDER GRANTING 65 Motion to Compel; DENYING 65 Motion to Appoint Counsel. Signed by Magistrate Judge R. Steven Whalen. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAM SMITH, III,
Plaintiff,
No. 10-13898
District Judge Mark A. Goldsmith
Magistrate Judge R. Steven Whalen

-vsLYNN M. DAVIDSON, ET AL.,
Defendants.
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ORDER
Before the Court is Plaintiff’s Motion to Compel Discovery and to Appoint
Counsel [Doc. #65]. The request to compel discovery is GRANTED, and the request to
appoint counsel is DENIED WITHOUT PREJUDICE.
Plaintiff has submitted an interrogatory to all Defendants (and this would apply to
all Defendants who have not been dismissed) seeking the address of Defendant Deborah
Ellis, who has not been served. Defendant Wojnarowicz’s counsel responded that it
would be best to stay discovery until his client’s motion to dismiss has been decided.
I previously entered an order setting a discovery deadline. See Doc. #46. I have
previously granted a motion to compel discovery. See Doc. #49. Because Plaintiff is a
prison inmate, the conference requirement of Fed.R.Civ.P. 26(f) does not apply. See
Fed.R.Civ.P. 26(f)(1) and 26(a)(1)(B)(iv). Accordingly, Plaintiff’s motion to compel is
GRANTED, and the surviving Defendants shall, within 21 days of the date of this Order,
submit answers under oath to this interrogatory. If they don’t know where Ellis lives,
they will so indicate.
However, Plaintiff’s request for counsel must be denied at this time. Unlike
criminal cases, there is no constitutional or statutory right to the appointment of counsel
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in civil cases. Rather, the Court requests members of the bar to assist in appropriate
cases. In Lavado v. Keohane, 992 F.2d 601, 605-606 (6th Cir. 1993), the Sixth Circuit
noted that “[a]ppointment of counsel in a civil case is not a constitutional right. It is a
privilege that is justified only by exceptional circumstances.” (Internal quotations and
citations omitted).
It is the practice of this Court to defer any attempt to obtain counsel for pro se civil
rights Plaintiffs until after motions to dismiss or motions for summary judgment have
been denied. At this point, Plaintiff’s motion to appoint counsel is premature. If
Plaintiff’s claims ultimately survive dispositive motions, he may renew his motion for
appointment of counsel at that time.
Accordingly, Plaintiff’s motion to compel is GRANTED.
Plaintiff’s motion for appointment of counsel is DENIED WITHOUT
PREJUDICE.
IT IS SO ORDERED.

Dated: January 30, 2014

s/ R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record on
January 30, 2014, electronically and/or by U.S. mail..
s/Michael Williams
Case Manager for the
Honorable R. Steven Whalen

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