Fitts et al v. Snyder et al

Filing 134

ORDER DENYING WITHOUT PREJUDICE 106 Motion to Appoint Counsel and for a Settlement Conference ; DENYING 106 Motion for an Evidentiary Hearing ; GRANTING 115 Motion for Speedy Hearing ; STRIKING 119 Motion to Amend/Correct; STRIKING 125 Motion ; STRIKING 127 Motion ; STRIKING 131 Motion AND AMENDING case caption. (SEE ORDER for further detail) Signed by Magistrate Judge Elizabeth A. Stafford. (Williams, Marlena)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTICT OF MICHIGAN
SOUTHERN DIVISION
CAMERON FITTS, et al.,
Plaintiffs,
v.

Case No. 12-13575
Honorable Judith E. Levy
Magistrate Judge Elizabeth A. Stafford

RICK SNYDER, et al.,
Defendants.
__________________________________/
ORDER REGARDING MULTIPLE NON-DISPOSITIVE MOTIONS
Pro se plaintiffs Cameron Fitts (“Fitts”), Michael Davis (“Davis”), and
Kenneth Wilson (“Wilson”; collectively “Plaintiffs”) brought this § 1983
prisoner civil rights case against 17 individuals (“Defendants”) in August
2012. [1]. On January 7, 2015, the Honorable Judith E. Levy referred the
case to the undersigned to resolve all pretrial matters pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B). [126]. Before the Court are multiple nondispositive motions. For the reasons discussed below, the Court ORDERS
that:
1. Fitts’s Motion For an Evidentiary Hearing [106] is DENIED and his
Motions to Appoint Counsel and For a Settlement Conference
[106] are DENIED WITHOUT PREJUDICE;
2. Fitts’s Motion for Speedy Hearing [115] is GRANTED;

3. Fitts’s Motion to Transfer Co-Plaintiffs to a Federal Prison [125]
and Davis’s Three Miscellaneous Pleadings [119, 127, 131] are
STRICKEN;
4. The case caption is AMENDED to correctly identify Vives by her
full name; and
5. The deadline to conduct discovery is May 22, 2015, the deadline
to file dispositive motions is June 26, 2015, and the parties may
only amend the pleadings if they first obtain leave of court.
II.

BACKGROUND
Plaintiffs brought this action on August 13, 2012 pursuant to 42

U.S.C. § 1983. [1]. On October 1, 2012, Plaintiffs filed the operative
amended complaint. [12]. When they brought this action, all Plaintiffs were
in the custody of the Michigan Department of Corrections (“MDOC”). Davis
and Wilson remain in custody, while Fitts was released in September 2013.
[See 85].
The Court previously dismissed all but four Defendants: Parole
Officers Rogers and Hawes1; former Administrator of the MDOC’s Hearings
and Policy Division, Marjorie Van Ochten; and Nurse Practitioner Rene
Vives. [See 49 and 54; 63 and 80]. In a separate Report and
Recommendation (“R & R”), the Court has recommended dismissing Van
Ochten, Rogers, and Hawes from this action. [See 133]. If the Court’s
recommendations are adopted, Vives will be the only remaining Defendant,
1

Plaintiffs identify Rogers and Hawes only by last name.
2

Fitts will be the only remaining plaintiff, and the only remaining claim will be
Fitts’s allegation that Vives withheld medication from him as retaliation for
filing a grievance. [Id.].
In this order, the Court addresses the pending non-dispositive
motions.
III.

ANALYSIS
A. Fitts’s Motions
1. Fitts’s Motions to Appoint Counsel [106] and For a
Settlement Conference [106] are DENIED WITHOUT
PREJUDICE and His Motion For an Evidentiary Hearing
[106] is DENIED
On September 30, 2014, Fitts filed a pleading combining three

motions: to appoint counsel, for an evidentiary hearing, and for a settlement
conference. [106]. Defendants did not respond.
Fitts says the Court should appoint counsel because he is medically
and mentally handicapped. Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court
may request an attorney to represent any person unable to afford counsel.”
Appointment of counsel under § 1915(e)(1) is not a constitutional right in a
civil action; a district court is vested with broad discretion to determine
whether “exceptional circumstances” warrant such an appointment.
Lavado v. Keohane, 992 F.2d 601, 604-06 (6th Cir. 1993). In making this
determination, the Court considers the nature of the case, the party’s ability
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to represent himself, the complexity of the legal and factual issues, and
whether the claims are frivolous or have a small likelihood of success. Id.
Appointment of counsel pursuant to § 1915(e)(1) is rare because “there are
no funds appropriated to pay a lawyer or to even reimburse a lawyer’s
expense.” Clarke v. Blais, 473 F. Supp. 2d 124, 125 (D. Me. 2007).
Considering the relevant factors, the Court finds that Fitts does not
show exceptional circumstances that merit the appointment of counsel at
this juncture. Fitts’s numerous filings demonstrate that he has had
adequate access to the court. Furthermore, this case is not overly
complex. The only remaining claim is Fitts’s allegation that Vives withheld
his medication as retaliation for filing a grievance. The factual and legal
issues for this claim are relatively straightforward and his filings suggest he
understands the nature of this claim. The Court will not appoint counsel at
this time.
Fitts says a settlement conference is appropriate because
Defendants have “lost summary judgment a lot of times.” [106 at Pg ID
2015]. This statement is not accurate; the only dispositive motion a
Defendant brought that was denied was Vives’s motion to dismiss for
failure to exhaust administrative remedies. [See 62, 79]. Moreover, it does
not appear that the parties have conducted discovery regarding Fitts’s
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retaliation claim against Vives. Thus, it is not likely that a settlement
conference would be productive at this stage in the proceedings. After Fitts
and Vives conduct discovery, the Court may reconsider this matter; or, if
both Fitts and Vives agree that they may be able to reach a settlement, the
Court will entertain a settlement conference sooner.
Fitts says the Court should hold an evidentiary hearing because
“there is evidence that can prove Defendants have so many complaints and
lawsuits against them.” [106 at Pg ID 2015]. However, the relevant
question is whether Vives retaliated against Fitts, not the number of
complaints and lawsuits that have been filed against the defendants.
Additionally, if he survives summary judgment, Fitts will have to prove his
case through a trial, not an evidentiary hearing. If Fitts’s goal is to seek
information that would be relevant to his retaliation claim against Vives, he
must obtain it by conducting discovery pursuant to the Federal Rules of
Civil Procedure. See generally Fed. R. Civ. P. 26-37.
Fitts’s Motions for Appointment of Counsel and for a Settlement
Conference [106] are DENIED WITHOUT PREJUDICE. Fitts’s Motion for
an Evidentiary Hearing [106] is DENIED.
2. Fitts’s Motion for Speedy Hearing [115] is GRANTED

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On November 12, 2014, Fitts moved for a “speedy hearing” regarding
the three motions he filed on September 30, 2014. [115]. He asks the
Court to rule on those motions and to set an order for further pleadings to
be filed. Fitts’s motion is GRANTED. The Court is ruling on his three
motions as set forth above, and sets the following deadlines:
Discovery Cutoff:

May 22, 2015;

Dispositive Motion Cutoff:

June 26, 2015;

Amendment to Pleadings:

Must obtain leave of Court.

3. Fitts’s Motion to Transfer Co-Plaintiffs to a Federal
Prison [125] is STRICKEN
On December 8, 2014, Fitts moved for the Court to transfer coPlaintiffs, Wilson and Davis, to a federal prison. [125]. Fitts acknowledges
in the motion that he brought it “on behalf of …Davis and Wilson.” [Id. at
Pg ID 2661-62]. Fitts is not an attorney, and cannot represent others in a
legal proceeding or file pleadings on their behalf.
Fitts’s Motion to Transfer Co-Plaintiffs Wilson and Davis [125] is
STRICKEN.
B. Davis’s Miscellaneous Pleadings [119, 127, 131] are
STRICKEN
On November 18, 2014, Davis filed a pleading that the Clerk’s Office
characterized as a “Motion to Amend New Defendants.” [119]. The
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contents of the pleading is a four-page letter Davis wrote to the warden of
his current MDOC facility.
On January 21 and 26, 2015, Davis filed two separate pleadings that
total over 200 pages, and that the Clerk’s Office characterized generally as
“Motion[s].” [127, 131]. The substantive portion of each pleading appears
to be a “Motion for the Court to Review MCL(s) Statutes Applied to
Plaintiffs in this Case at Bar…for Plain Errors….” [See 127 at Pg ID 2666;
131 at Pg ID 2932]. One of the “motions” also contains a cover letter in
which Davis requests a “Docket Journal” for all Plaintiffs. [127 at Pg ID
2664].
The Court STRIKES these pleadings [119, 127, 131] because
Federal Rule of Civil Procedure 7(b)(1) requires motions to “state with
particularity the grounds for seeking the order” and to “state the relief
sought.” Davis’s meandering motions do not state with particularity the
relief that he seeks or the legal grounds for seeking relief. Second, even if
they did qualify as motions under Rule 7, the Court has recommended
dismissing Davis from this action. Thus, Davis will no longer be part of this
action, making his motions moot. If the Court’s recommendation is
overruled and Davis remains a party to this case, he must file appropriate
motions that comply with the above requirements.
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Davis’s miscellaneous pleadings [119, 127, 131] are STRICKEN.
C. The Case Caption is Amended
In the Amended Complaint, Plaintiffs referred to defendant Rene
Vives only by last name, and inconsistently as both Vivus and Vives. In the
case caption on the docket, Vives is referred to as Vivus. For clarity, the
Court amends the case caption to correctly identify Vives by her full name.
IV.

CONCLUSION
For the foregoing reasons, the Court orders that: Fitts’s Motions to

Appoint Counsel and For a Settlement Conference [106] are DENIED
WITHOUT PREJUDICE; Fitts’s Motion For an Evidentiary Hearing [106] is
DENIED; Fitts’s Motion for Speedy Hearing [115] is GRANTED; Fitts’s
Motion to Transfer Co-Plaintiffs to a Federal Prison [125] and Davis’s Three
Miscellaneous Pleadings [119, 127, 131] are STRICKEN; and the case
caption is AMENDED to correctly identify Vives by her full name.
Furthermore, the deadline to conduct discovery is May 22, 2015; the
deadline to file dispositive motions is June 26, 2015; and the parties may
only amend the pleadings if they first obtain leave of court.
IT IS ORDERED.
s/Elizabeth A. Stafford
ELIZABETH A. STAFFORD
United States Magistrate Judge
Dated: February 27, 2015
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NOTICE TO THE PARTIES REGARDING OBJECTIONS
The parties’ attention is drawn to Fed. R. Civ. P. 72(a), which
provides a period of fourteen (14) days from the date of receipt of a copy of
this order within which to file objections for consideration by the district
judge under 28 U.S. C. §636(b)(1). Unless ordered otherwise by the Court,
the filing of an appeal to the District Judge does not stay the parties’
obligations in this Order. See E.D. Mich. LR 72.2.
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s ECF
System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on February 27, 2015.
s/Marlena Williams
MARLENA WILLIAMS
Case Manager

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