Jessie v. Phanuf et al

Filing 15

ORDER Directing Service of this Order, GRANTING in part and DENYING in part 9 Motion ; DENYING without Prejudice Plaintiff's 11 Motion to Appoint Counsel ; GRANTING in part and DENYING in part 13 Motion for discovery of privileged information. --Signed by Magistrate Judge Anthony P. Patti. (MWil)

Case 5:21-cv-11201-JEL-APP ECF No. 15, PageID.70 Filed 09/08/21 Page 1 of 7

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MYRON GREGORY JESSIE,
Case No. 5:21-cv-11201
District Judge Judith E. Levy
Magistrate Judge Anthony P. Patti

Plaintiff
v.
NURSE PHANUF,
NURSE AMES,
UNKNOWN X-RAY TECHNICIAN,
UNKNOWN NURSE/DOCTOR, and
UNKNOWN FEMALE NURSE,
Defendants.
___________________________________/

ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTIONS FOR DISCOVERY (ECF NOS. 9 and 13), (2) DENYING
WITHOUT PREJUDICE PLAINTIFF’S MOTION TO APPOINT
COUNSEL (ECF No. 11), and (3) DIRECTING THE CLERK OF THE
COURT TO SERVE A COPY OF THIS ORDER ON THE MDOC
A.

Operative Pleading

Myron Gregory Jessie is currently incarcerated at the Michigan Department
of Corrections (MDOC) Marquette Branch Prison (MBP). (ECF Nos. 10, 12.) On
May 15, 2021, while incarcerated at MBP, Plaintiff filed a verified complaint
against five Defendants, each of whom appears to be associated with the MDOC’s
Macomb Correctional Facility (MRF). (ECF No. 1, PageID.2-3 ¶¶ 5-9.) The
alleged facts underlying Plaintiff’s complaint stem from his alleged August 8, 2019

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attempt at suicide by “swallowing the [4-inch] metal arm piece that was attached to
his eye glasses[.]” (Id., PageID.3-7 ¶¶ 10-35.)
Plaintiff’s claims for relief are based upon the Eighth Amendment. (Id.,
PageID.8-9 ¶¶ 39-44.) He seeks an award of compensatory and punitive damages,
costs and expenses, and declaratory and equitable relief. (Id., PageID.9-10 ¶¶ AF.)
B.

Identification of Defendants and Records Requests

Plaintiff is proceeding in forma pauperis, and Judge Levy has referred this
case to me for all pretrial matters. (ECF Nos. 2, 4, 14.) On June 17, 2021, the
Court directed service without prepayment of costs and authorized the U.S.
Marshal to collect costs after service is made. (ECF No. 5.)
The Clerk of the Court has prepared documents for service upon Defendant
Patrice Phaneuf at MRF. (ECF No. 7.) As to the four other Defendants, the Court
entered a June 21, 2021 order, which directed Plaintiff “to provide the Court with
the full name for defendant Nurse Ames and the names of the unknown defendants
so that service may be effectuated upon those parties . . . [,]” (ECF No. 6).
Since the entry of this order, Plaintiff has twice sought the Court’s assistance
with Defendants’ full names and addresses. (ECF Nos. 9, 13.) Upon
consideration, this is an appropriate request. The Court will enter an order
requiring the MDOC to: (1) make reasonable efforts to identify the four
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Defendants as to whom service has not been initiated; and, (2) unless the
Department of Attorney General agrees to accept service on behalf of these
Defendants, provide employer/business contact information and last known home
addresses to the U.S. Marshals Service (USMS). For security reasons, addresses of
prison officials are not provided to prisoners.
In addition to seeking Defendants’ full names and addresses, Plaintiff’s
filings also request production of documents – e.g., health care kites, health care
responses, medical records, and grievance materials – dated August 8, 2019 to
March 1, 2020. (ECF No. 9, PageID.53-54; ECF No. 13, PageID.65.) This request
is more appropriately addressed once Defendants have been identified and served
with this lawsuit. Then, disclosures and discovery can occur in accordance with
Federal Rules of Civil Procedure 26-37. Plaintiff may not simply ask the Court to
order production without having followed the rules of discovery at an appropriate
juncture.
C.

Request for appointment of counsel

On July 21, 2021, Plaintiff filed a “request for Court appointed attorney.”
(ECF No. 11.) 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
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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 appointment of
counsel in a civil case, therefore, “is a privilege not a right.” Childs v. Pellegrin,
822 F.2d 1382, 1384 (6th Cir. 1987) (internal quotation omitted).
In prisoner civil rights cases, the Court of Appeals for the Sixth Circuit has
held that the recruitment of an attorney to represent an indigent plaintiff is
“justified only by exceptional circumstances.” Bennett v. Smith, 110 F. App’x 633,
635 (6th Cir. 2004) (citations omitted). 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 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).
Plaintiff’s brief motion contends that he has no income or assets, he has
financial obligations, but he “understand[s] that [he] may be required to contribute
to the cost of any attorney.” (ECF No. 11, PageID.60.) However, given the fact
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that service upon Defendants is still in process, the current posture of the case
signals that Plaintiff’s request is premature. Moreover, while Plaintiff elsewhere
alleges that he suffers from manic depression and anxiety (ECF No. 1, PageID.3 ¶
13), Plaintiff’s motion for counsel does not set forth any exceptional circumstances
that would potentially justify recruiting pro bono counsel any sooner than trial.
Finally, the issues in this case are not notably complex (i.e., deliberate indifference
to a serious medical need), and Plaintiff’s filings – his complaint (ECF No. 1), his
application to proceed in forma pauperis and to request substitute service (ECF No.
2), his motions (ECF Nos. 9, 11, 13), and his address changes notices (ECF Nos.
10, 12) – are clear (e.g., they are very neatly written and well organized), which
demonstrates an ability to represent himself comparable to others in his situation.
E.

Order

Accordingly, Plaintiff’s discovery motions (ECF Nos. 9, 13) are
GRANTED IN PART. As set forth above the MDOC SHALL make reasonable
efforts to identify: (1) the unknown nurse/doctor who Nurse Phanuf called on
August 8, 2019 (ECF No. 1, PageID.3-4 ¶¶ 13-15); (2) Nurse Ames, who saw
Plaintiff on or about August 10, 2019 (id., PageID.4 ¶¶ 17-19); and, (3 & 4) the
unknown female x-ray technician and unknown female nurse who saw Plaintiff on
or about August 14, 2019 and August 22, 2019 and possibly during subsequent xrays (id., PageID.5-6 ¶¶ 20-22, 27-30, 32). No later than September 22, 2021, the
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MDOC shall: (1) inform the Court of its reasonable efforts to identify these
individuals; and, (2) unless the Department of Attorney General agrees to accept
service on behalf of these Defendants, provide employer/business contact
information and last known home addresses to the USMS. Understanding that
Defendants have yet to appear, the Clerk of the Court is DIRECTED to serve a
copy of this order upon Assistant Attorney General Lisa Geminick, MDOC
Division Chief (c/o 525 W. Ottawa Street, P.O. Box 30217, Lansing, MI 489331067).1 However, Plaintiff’s requests for production of documents are DENIED
WITHOUT PREJUDICE to renewal in accordance with Fed. Rules Civ. P. 2637, once Defendants have been identified and served and Plaintiff has actually
tendered discovery requests upon served parties.
Plaintiff’s motion for the appointment of counsel (ECF No. 11) is DENIED
WITHOUT PREJUDICE. Plaintiff may petition the Court for the recruitment of
pro bono counsel if this case survives dispositive motion practice, proceeds to trial,
or other circumstances demonstrate such a need in the future.

1

See https://www.michigan.gov/ag/0,4534,7-359-82100---,00.html (last visited
Sept. 1, 2021), www.michbar.org, “Member Directory.”

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IT IS SO ORDERED.2
Dated: September 8, 2021
Anthony P. Patti
United States Magistrate Judge

2

The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a
period of fourteen (14) days after being served with a copy of this order within
which to file objections for consideration by the district judge under 28 U.S.C. §
636(b)(1).
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