Kilbourne v. Washington et al

Filing 35

OPINION and ORDER Overruling 21 Plaintiffs' Objection to 20 Magistrate Judge's Order. Signed by District Judge F. Kay Behm. (KCol)

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

Case No. 23-13008
F. Kay Behm
United States District Judge

Plaintiff,

Elizabeth A. Stafford
U.S. Magistrate Judge

HEIDI WASHINGTON, et al.,
Defendants.
___________________________ /

OPINION AND ORDER OVERRULING PLAINTIFFS’ OBJECTION
(ECF No. 21) TO MAGISTRATE JUDGE’S ORDER (ECF No. 20)
I.

PROCEDURAL HISTORY
This matter is before the Court on Plaintiffs’ Objection (ECF No. 21) to the

Magistrate Judge’s Order denying the appointment of counsel. (ECF No. 20).
Plaintiff is a prisoner in the custody of the Michigan Department of Corrections.
He filed this prisoner civil rights suit on November 28, 2023, alleging that
Defendants censored an email message and denied him due process in violation
of the First and Fourteenth Amendments. (ECF No. 1). Plaintiff moved for
appointment of counsel. (ECF No. 19). Magistrate Judge Elizabeth A. Stafford
denied Plaintiff’s motion. (ECF No. 20). Plaintiff timely objected to that Order.
(ECF No. 21).

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For the reasons detailed below, the court finds that none of the objections
state a clearly erroneous mistake requiring this court to set aside or modify the
order and therefore AFFIRMS the order of the Magistrate Judge and OVERRULES
Plaintiff’s objections.
II.

STANDARD OF REVIEW
When a litigant objects to a magistrate judge’s ruling on a non-dispositive

matter, they 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 must then consider
any timely objections and modify or set aside any part of the magistrate judge’s
order that is “clearly erroneous or contrary to law.” Id. A magistrate judge’s
factual findings are reviewed under the clearly erroneous standard and will be
reversed only when “the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” United States v.
Mabry, 518 F.3d 442, 449 (6th Cir. 2008) (citing United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948)).
A magistrate judge’s legal conclusions are reviewed under the “contrary to
law” standard and will be reversed only if they fail to apply or misapply relevant
statues, case law, or rules of procedure. Bisig v. Time Warner Cable, Inc., 940 F.3d
205, 219 (6th Cir. 2019) (citations omitted). A district court may not reverse a
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magistrate judge’s ruling simply because the court would have decided the matter
differently. Sedgwick Ins. v. F.A.B.E. Custom Downstream Systems, 47 F.Supp.3d
536, 538 (E.D. Mich. 2014); see also Anderson v. City of Bessemer City, N.C., 470
U.S. 564, 573 (1985) (interpreting the clearly erroneous standard in Rule 52(a)).
III.

ANALYSIS
Under 28 U.S.C. § 1915(e)(1), a federal court may request an attorney to

represent an indigent plaintiff. Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir.
1993). There is no constitutional right to the appointment of counsel in civil
cases. See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25-27 (1981). It is a
privilege that is justified only by exceptional circumstances. Lavado v. Keohane,
992 F.2d 601, 606 (6th Cir. 1993). To make the determination whether there are
exceptional circumstances to appoint counsel, the court considers the type of
case involved, plaintiff’s ability to represent himself, as well as the complexity of
the case, and also whether the claims being presented are frivolous or have a
small likelihood of success. Id.
Plaintiff objects to the Magistrate Judge’s decision because he argues that
his reasons for seeking counsel are anything but “typical.” He claims that Judge
Stafford only focused on three of his asserted reasons: that he cannot afford
counsel, that he has limited knowledge of law and procedural rules, and the case
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is complex. (ECF No. 21, PageID.77, citing ECF No. 20, PageID.74). Plaintiff argues
that Judge Stafford failed to focus on the primary issue in this case – an issue of
first impression in the Sixth Circuit that is of major legal importance. More
specifically, Plaintiff points to the case of Benning v. Comm’r, Ga. Dep’t of Corr.,
71 F.4th 1324 (11th Cir. 2023), which held that a prisoner has a protected liberty
interest in his outgoing emails. Plaintiff points out that the Sixth Circuit has cited
Benning with approval, but has not specifically adopted its holding. Plaintiff also
argues that this is not a typical prisoner suit in that he does not seek money
damages, only injunctive and declaratory relief that could affect the rights of all
Michigan prisoners by triggering due process protections for their outgoing and
incoming emails.
Plaintiff also contends that Judge Stafford did not give appropriate weight
to the complexity of the case and says that civil litigation by its nature is complex.
Plaintiff also urges the court to reject Judge Stafford’s reasoning that this case has
not yet been tested by a motion for summary judgment because it is that motion
for which Plaintiff needs counsel most, along with the taking of Defendant Heidi
Washington’s deposition. But Plaintiff raises no issues that are not faced by other
prisoners proceeding pro se. See Griffin v. Klee, 2015 WL 3407919, at *2 (E.D.
Mich. May 27, 2015) (Limited knowledge of the law, the desire for an attorney’s
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expertise, and a moderately complex subject matter do not present extraordinary
circumstances differentiating the plaintiff from any other prisoner proceeding pro
se). The decision to appoint counsel is within the court’s discretion. Glover v.
Johnson, 75 F.3d 264, 268 (6th Cir. 1996). Based on the circumstances presented
here, the court finds that the decision to deny counsel was well within Judge
Stafford’s discretion. Accordingly, the court OVERRULES Plaintiff’s objections to
Judge Stafford’s order denying the appointment of counsel.
IV.

CONCLUSION
Therefore, the Court OVERRULES Plaintiffs’ Objections and AFFIRMS the

Magistrate Judge’s Order.
SO ORDERED.
Date: January 7, 2025

s/F. Kay Behm
F. Kay Behm
United States District Judge

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