Townsend v. Rhodes et al

Filing 32

ORDER DENYING AS MOOT 6 Plaintiff's Motion for an Extension of Time to Proceed in forma pauperis, VACATING 4 Order Granting Plaintiff's Application to Proceed without Prepaying Fees or Costs, DENYING 12 Plaintiff's Motion for Reconsideration, and DENYING 15 Motion to Appoint Counsel. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICHARD TOWNSEND,
v.

Plaintiff,

Case No. 14-10411
HON. TERRENCE G. BERG

KAREN RHODES, et al.
Defendants.

/

ORDER DENYING AS MOOT PLAINTIFF’S MOTION FOR AN EXTENSION
OF TIME TO PROCEED IN FORMA PAUPERIS (DKT. 6), VACATING
ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED
WITHOUT PREPAYING FEES OR COSTS (DKT. 4), DENYING
PLAINTIFF’S MOTION FOR RECONSIDERATION (DKT. 12),
AND DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF COUNSEL (DKT. 15)
Plaintiff Richard Townsend, a prisoner in the custody of the Michigan
Department of Corrections, is proceeding in forma pauperis on his claim, under 42
U.S.C. § 1983, that Defendants are failing to treat his type two diabetes. (Dkt. 1.)
Plaintiff asserts that he requires daily insulin shots but is severely allergic to the
type of insulin Defendants prescribed. (Id.) As a result, on approximately December
13, 2013, Plaintiff stopped taking his prescribed insulin and alleges that Defendants
have not provided him with any alternative. (Id.)
I.

PLANTIFF’S MOTIONS

Before the Court are three motions filed by Plaintiff. Plaintiff has filed a
Motion for an Extension of Time to Proceed In Forma Pauperis. (Dkt. 6.) This
motion will be DENIED AS MOOT. Plaintiff has filed a Motion for Reconsideration

Pertaining to Order Waiving Payment of the Filing Fees (Dkt. 12); this motion will
be DENIED and the Court’s order Granting Application to Proceed without
Prepaying Fees or Costs (Dkt. 4) will be VACATED. Finally, Plaintiff’s Motion for
Appointment of Counsel will be DENIED WITHOUT PREJUDICE.
A. Motion for an Extension of Time to Proceed In Forma Pauperis.
On January 27, 2014, Plaintiff filed a complaint under 42 U.S.C. § 1983
alleging that Defendants were not treating his Type 2 Diabetes. (Dkt. 1.) Plaintiff
also filed an application to proceed in forma pauperis with his complaint (Dkt. 2).
The Court granted Plaintiff’s application on May 16, 2014, and determined that
Plaintiff could proceed without having to prepay fees or costs. (Dkt. 7.)
On April 7, 2014, Plaintiff filed a motion he captioned as a “Motion for an
Extension of Time to Proceed In Forma Pauperis.” (Dkt 6.) In this motion, Plaintiff
alleges that “he is unable to proceed in forma pauperis at this time” because “legal
material pertaining to [his] case was confiscated and placed in E-unit contraband
locker.” (Id. at 1.) Plaintiff asserts that as a result, “he is being denied access to the
court” and that his request for “a legal written [sic] to help Plaintiff with filing
necessary motions” has gone unanswered. (Id. at 1-2.)
In this motion, it is not clear what relief Plaintiff is asking the Court to grant.
If Plaintiff is asking the Court to grant him additional time to complete his
application to proceed in forma pauperis, such a request is moot because Plaintiff’s
application has been granted. (Dkt. 7.) It is possible, however, that Plaintiff is
simply informing the Court that he is unable to proceed with his case at this time,

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because materials related to his case were confiscated (Dkt. 6, p. 1 at ¶¶ 1-3) and
because “he has lost over 50% of his eyesight” (Dkt. 6, p.1 at ¶ 4), and he is seeking
some kind of stay to avoid the Court revoking his in forma pauperis status.
Although pending motions remain to be resolved in this case (Dkts. 13-14 and
28), Plaintiff’s in forma pauperis status has been granted and is not at risk at this
time. Moreover, whatever issues prompted Plaintiff’s motion for an extension of
time seem to have been resolved because since filing that request Plaintiff has filed
five additional motions (Dkts. 12-15 and 30), and has also communicated with the
Court through written letters (Dkts. 10-11.)
Moreover, Plaintiff has noted in a subsequent motion that although his legal
materials had been confiscated because Plaintiff had “excessive legal property,” he
nevertheless would be obtaining a legal footlocker to store his materials. (Dkt. 12, p.
2.) Thus, regardless of how the Court interprets the grounds behind Plaintiff’s
motion for an extension of time, it must be denied as moot because in forma
pauperis status has been granted and as a matter of practical reality, Plaintiff has
had no recent difficulty in communicating with the Court.
B. Motion for Reconsideration Pertaining to Order Waiving Payment of
the Filing Fees.
On June 26, 2014, Plaintiff filed a Motion for Reconsideration Pertaining to
Order Waiving Payment of the Filing Fees. (Dkt. 12.) In this motion, Plaintiff
maintains that although his application to proceed in forma pauperis was approved
on January 30, 2014 (Dkt. 4), Executive Magistrate Judge R. Steven Whalen
subsequently issued an order on May 16, 2014 (Dkt. 7) approving Plaintiff’s
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application again but directing Plaintiff to pay an initial partial filing fee of $7.01
and eventually the entire filling fee. (Id. at 1.) Moreover, Plaintiff argues that Judge
Whalen “is not the assigned judge appointed by Judge Berg” and therefore Judge
Whalen’s order cannot supersede the January 30, 2014 order granting Plaintiff in
forma pauperis status.1 (Id. at 2.) Finally, Plaintiff states that he has two
restitution obligations that, along with the replacement cost of items Plaintiff
claims were stolen from him, pose a heavy financial burden. (Id. at 2-3.)
Under the Prison Litigation Reform Act (“PLRA”), a prisoner who brings a
civil action “shall be required to pay the full amount of a filing fee.” 28 U.S.C. §
1915(b)(1). Plaintiff has been granted in forma pauperis status. (Dkt. 7.) In forma
pauperis status, however, does not mean that all court fees and costs are
automatically waived. Instead, a prisoner proceeding in forma pauperis is excused
only from prepaying the filing fees; the prisoner must still pay the filing fee over
time. See generally 28 U.S.C. § 1915. When funds exist, the Court is required by law
to assess and collect an initial partial filling fee payment and subsequent monthly
payments until the filing fees are paid. 28 U.S.C. § 1915(b)(1) and (b)(2).
Judge Whalen’s May 16, 2014 order granting Plaintiff in forma pauperis
status and assessing Plaintiff’s initial partial filling fee payment meets this Court’s
obligation under the PLRA. The law requires that the Court assess and collect an
initial partial filing fee payment of 20% of either Plaintiff’s average monthly
deposits to his trust fund account or the average monthly balance in Plaintiff’s

 Judge Whalen, as a Magistrate Judge, has the authority to issue “any preliminary orders and
conduct any necessary evidentiary or other appropriate hearings in prisoner cases” filed under 42
U.S.C. § 1983. L.R. 72.1(b)(2).
1

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account for the preceding six months, whichever yields the larger amount. 28 U.S.C.
§ 1915(b)(1).
In his application to proceed in forma pauperis, Plaintiff included a certificate
of his trust fund account activity from July 21, 2013 through January 21, 2014.
(Dkt. 2, pp. 3-6.) According to Plaintiff’s account activity, an average of $35.05 is
deposited every month while Plaintiff’s average monthly account balance over the
previous six months was $3.31. (Id. at 3.) Because Plaintiff’s average monthly
account deposit of $35.05 is the larger of the two amounts, this amount was used to
calculate Plaintiff’s initial partial filing fee payment of $7.01. (See dkt. 7.) As
required by the PLRA, Plaintiff must make monthly payments of 20% of his income
from the previous month until the entire filing fee of $350 is paid in full. 28 U.S.C. §
1915(b)(2).
Because Judge Whalen’s May 16, 2014 order (Dkt. 7) is in compliance with
the Court’s obligations under the PLRA, Plaintiff’s motion for reconsideration of
that order will be denied. Moreover, the Court’s January 30, 2014 order granting
Plaintiff’s application to proceed without prepaying fees or costs (Dkt. 4) will be
vacated as duplicative. Plaintiff’s in forma pauperis status remains valid pursuant
to Judge Whalen’s order (Dkt. 7), and Plaintiff will have to pay the fees and costs
associated with this lawsuit in installments as mandated by the PLRA.
C. Motion for Appointment of Counsel.
Finally, Plaintiff has filed a Motion for Appointment of Counsel. (Dkt. 15.) In
support of his motion, Plaintiff states that: (1) he is not able to afford counsel; (2)

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the issues in his case are complex; (3) he has limited access to a law library; (4) he
has limited legal knowledge; (5) he has limited ability to interview witnesses and
experts; and (6) the ends of justice would be served because legal representation
would help prevent retaliation by government employees. (Dkt. 15, p. 1.)
The Court will deny without prejudice Plaintiff’s motion because the legal
and factual difficulty of this case does not appear to exceed Plaintiff’s ability to
prosecute it at this time. Under 28 U.S.C. § 1915(e)(1), a federal court may request
counsel to represent an indigent plaintiff. Yet, appointment of counsel for an
indigent party is a privilege justified only under exceptional circumstances. Lavado
v. Keohane, 992 F.2d 601, 606 (6th Cir.1993). The factual issues raised by Plaintiff
in his seven-page typewritten complaint are clear and straightforward. (See Dkt. 1.)
Although Plaintiff may have some health challenges, he has shown in his complaint
and subsequent motions that he understands the legal issues and is capable of
presenting them to the Court in a satisfactory manner.
II.

CONCLUSION

Accordingly, Plaintiff’s Motion for an Extension to Proceed In Forma
Pauperis (Dkt. 6) is DENIED AS MOOT.
Plaintiff’s Motion for Reconsideration Pertaining to Order Waiving
Payment of the Filing Fees is DENIED and the Court’s January 30, 2014 Order
Granting Application to Proceed without Prepaying Fees or Costs (Dkt. 4) is
VACATED.
Finally, Plaintiff’s Motion for Appointment of Counsel (Dkt. 15) is DENIED

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WITHOUT PREJUDICE. The Court will bear in mind Plaintiff’s request if,
following a more thorough review of the record, the Court determines that
appointment of counsel is necessary. Plaintiff need not file an additional motion
concerning this issue.
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: January 23, 2015
Certificate of Service
I hereby certify that this Order was electronically submitted on January 23,
2015, using the CM/ECF system, which will send notification to each party.
s/A. Chubb
Case Manager

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