Crawford v. Washington et al
ORDER DENYING without Prejudice Plaintiff's 28 Motion to Appoint Counsel --Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 4:17-cv-11423
District Judge Linda V. Parker
Magistrate Judge Anthony P. Patti
OF CORRECTIONS, CRAIG
CORRECTIONAL CARE OF
MICHIGAN, and MICHIGAN
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S NOVEMBER
16, 2017 MOTION FOR APPOINTMENT OF COUNSEL (DE 28)
Kenneth Crawford is currently incarcerated at the Michigan Department of
Corrections (MDOC) Muskegon Correctional Facility (MCF). On April 28, 2017,
while incarcerated at the MDOC Saginaw Correctional Facility (SRF), Plaintiff
filed the instant lawsuit in pro per. (DE 1.) The facts underlying Plaintiff’s
complaint concern treatment for chronic hepatitis C virus (HCV), and his claims
are based upon alleged deliberate indifference to his serious medical needs in
violation of the Eighth Amendment. (DE 1 at 6-11.) He seeks compensatory and
punitive damages. (DE 1 at 12.)
Defendants Quality Correctional Care of Michigan and Craig Hutchinson
appeared via counsel on August 14, 2017. (DEs 15-16; see also DE 19-20.) Two
weeks later, on August 28, 2017, Defendants Heidi Washington and MDOC
appeared via counsel. (DE 21.) However, Defendants MDOC and Washington
have since been dismissed. (DE 37.) Plaintiff has named a fifth defendant –
“Michigan Corrections Commission, et [a]l[,]” – who has yet to appear.1
Judge Parker has referred this case to me for all pretrial proceedings.
Currently pending before the Court are: (1) Plaintiff’s November 16, 2017 motion
for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) (DE 28); and (2)
Defendants Quality Correctional Care of Michigan and Hutchinson’s December
29, 2017 motion for summary judgment (DE 33), regarding which a response and
reply have been filed (DEs 38, 39) and which will be addressed under separate
cover in the future.
The Court recognizes Plaintiff’s claims that he is relegated to a wheelchair
and has “only limited access to the law library . . . .” (DE 28 at 2 ¶¶ 2, 4.) In
Plaintiff seems to have named the “Michigan Corrections Commission” as a
defendant in its capacity to administer the correctional facilities and/or select and
employ the Director. (DE 1 at 2, 10; see also Mich. Comp. Laws §§ 791.202,
791.203.) However, the attempt at service upon this Defendant was unsuccessful.
(DEs 11, 14.)
support of his request, Plaintiff also cites his “inability to investigate the facts,” his
level of education, his lack of legal experience and training, and the complex
discovery rules. (DE 28 at 4 ¶¶ 10-12.)
It is true that, “[t]he court may request an attorney to represent any person
unable to afford counsel.” 28 U.S.C. § 1915(e)(1); however, Plaintiff’s various
filings illustrate his ability to effectively communicate with the Court.
example: (1) the Court is able to understand Plaintiff’s type-written complaint (DE
1); (2) the Court granted Plaintiff’s application to proceed without prepayment of
the filing fee (DEs 2, 6); (3) Plaintiff has apprised the Court of his changes in
address/contact information (DEs 5, 10); (4) the Court is easily able to understand
the instant, handwritten motion (DE 28); and, (5) Plaintiff’s typewritten response
to the earlier dispositive motion and Plaintiff’s handwritten response to the pending
dispositive motion are coherent and legible (DE 24, 38). This interpretation of
Plaintiff’s filings is not marred by the Court’s rejection of his objections (DEs 32,
37) or his unsuccessful appeal. (See DEs 41-43).
Finally, 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 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, 26-27
(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
Bennett v. Smith, 110 F. App’x 633, 635 (6th Cir. 2004).2
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)(1), 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
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.
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 these factors here: (1) the probable
merit of Plaintiff’s claims against Defendants Quality Correctional Care of
Michigan and Hutchinson is being addressed as their pending dispositive motion is
considered; (2) the nature of the case is straightforward, having one Plaintiff and
only 2-3 remaining Defendants; (3) the case is not complex, even though it
involves medically related claims; and, (4) Plaintiff has demonstrated the ability to
represent himself, notwithstanding his suggestion to the contrary.3
Plaintiff has not described any circumstances to justify the Court’s
recruitment of counsel. Accordingly, at this time, his motion for appointment of
counsel (DE 28) is DENIED WITHOUT PREJUDICE. Plaintiff may petition
the Court for the recruitment of pro bono counsel if this case survives dispositive
In fact, Plaintiff’s citations to Montgomery v. Pinchak, 294 F.3d 492, 501-502 (3d
Cir. 2002) (regarding “Plaintiff's Ability to Present His or Her own Case”) (see DE
28 at 4 ¶ 10) and Swofford v. Mandrell, 969 F.2d 547, 552 (7th Cir. 1992) (“As for
the complexity of the legal issues, we need only point to the difficult and subtle
question of the state of mind required for a Fourteenth Amendment violation, . . .
.”) (see DE 28 at 5 ¶ 14) are perceptive and admirable. However, these cases are
not binding upon this Court.
motion practice, proceeds to trial, or if other circumstances demonstrate such a
need in the future.
IT IS SO ORDERED.
Dated: April 11, 2018
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on April 11, 2018, electronically and/or by U.S. Mail.
Case Manager for the
Honorable Anthony P. Patti
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