Odom #228931 v. Christiansen et al

Filing 26

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
ANTHOINE DESHAW ODOM,
Plaintiff,

Case No. 1:18-cv-81

v.

Honorable Robert J. Jonker

UNKNOWN CHRISTIANSEN et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Plaintiff Anthoine Deshaw Odom is incarcerated with the Michigan Department of Corrections
(MDOC) at the Ionia Correctional Facility (ICF). Before the Court is a lengthy amended complaint
(ECF No. 8) naming over thirty MDOC employees, as well as a proposed supplement to that
complaint (ECF No. 12), seeking to add an additional nine defendants. In addition, Plaintiff has
filed several motions (ECF Nos. 11, 16, 18, 22, 24, 25). For the reasons herein, the Court will
grant the motion to amend/supplement the amended complaint (ECF No. 12), and will dismiss all
defendants other than Defendants Christiansen and Haynes due to misjoinder. The Court will
dismiss the action against Defendants Christiansen and Haynes for failure to state a claim.
Plaintiff’s other pending motions will be denied.

I.

Background

In the amended complaint and supplement thereto,1 Plaintiff apparently sues the
following MDOC employees: Warden (unknown) Naple; Deputy Wardens Erica Huss, (unknown)
Christiansen, and (unknown) Minnard; Prisoner Counselors (unknown) Blair, (unknown) Haynes,
(unknown) Deforge, and (unknown) Pow; Lieutenant (unknown) Steward; Resident Unit
Managers (unknown) Davis and (unknown) Larson; Sergeants (unknown) Kerr and (unknown)
Leitheim2; Recreational Department Manager (unknown) Bronson; Captain (unknown) Woods;
Inspectors (unknown) Niemensto and (unknown) Barber; RN (unknown) Greynor; Hearing
Officer Elizabeth Morris; Officers (unknown) Ire, (unknown) Burns, (unknown) Watson,
(unknown) McBride, (unknown) Simon, (unknown) Issacson, (unknown) Clemmons, (unknown)
Heitikko, (unknown) Skitta, (unknown) Klemett, (unknown) Matila, (unknown) Ettemakie,
(unknown) Lar, (unknown) Ombore, (unknown) Hayatt, (unknown) Nardie, (unknown) Butsual,
(unknown) LaClare, (unknown) Beauchamp, (unknown) Fergason, (unknown) Goreman,
(unknown) Hitton, and (unknown) Hilzey; an individual identified as the “I-Max (Storeman)”; and
another individual identified as “I-Max Accountant.” (Am. Compl., ECF No. 8, PageID.71-74;
Suppl. to Am. Compl., ECF No. 12, PageID.114.)
The substance of Plaintiff’s claims is difficult to discern. The amended complaint
is not well-organized and its allegations are vague and confusing. At least one thing is clear,
however. Plaintiff is complaining about a number of incidents, most of which are completely
unrelated to one another. The complaint covers events involving different defendants at different
times and at different locations. The named Defendants are employees at several different prison

1

The Court will grant Plaintiff’s motion to amend/supplement his amended complaint (ECF No. 12). Fed. R. Civ. P.
15.

2

Initially identified as “Laitinen,” but changed to Leitheim in the supplement to the complaint (ECF No. 12,
PageID.117).

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facilities in Michigan, including ICF, the Marquette Branch Prison (MBP), and the Baraga
Correctional Facility (AMF). The incidents alleged occurred over a three-year time period, from
October 2015 to 2018.
Plaintiff alleges a random laundry list of mostly minor complaints, including the
following: his prison mail and prison grievances disappear or are intercepted by prison officials.
Officials speak “disrespectful[ly]” and “inconsiderately” to him. (Id., PageID.78.) One officer
challenged him to a fight. Plaintiff cannot obtain the job that he wants or complete the educational
program that has been recommended for him in order to obtain parole. He once received “stale”
cereal. (Id., PageID.79.) Officers have falsified, or conspired to falsify, misconduct charges
against him. Another officer sent his mail to a different federal court than the one he addressed
his mail to. Other officers have stolen items from his cell. An officer delayed or denied his request
for reclassification to a lower security level. He did not receive a monthly doctor’s appointment.
He does not receive responses to some of his grievances. Sometimes, officers do not allow him to
take a shower. He purchased turkey sandwiches through a prison fundraiser, but the sandwiches
did not match the advertisement. He purchased chicken breasts from the prison store but did not
receive them.
A recurring theme in Plaintiff’s allegations is that an unidentified individual (or
possibly group of individuals) is responsible for many of Plaintiff’s problems. He refers to this
person as an “unseen civil servant,” a “familiar voice,” an “intruder,” an “unseen hand,” and an
“Arch enemy.” (Am. Compl., ECF No. 8, PageID.75, 78, 79, 84, 88.) Apparently, this person
follows Plaintiff from one institution to another, hiding behind corners, talking about him in the
hallway, and watching him on the video monitors.

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II.

Misjoinder

Plaintiff’s various and sundry allegations are not suitable for a single federal action.
Rules 18 and 20 of the Federal Rules of Civil Procedure govern the proper joinder of claims and
parties. The Court has authority to sua sponte dismiss parties who are not properly joined as
defendants in this action. Fed. R. Civ. P. 21.
A. Standard
Rule 20(a) limits the joinder of parties in single lawsuit, whereas Rule 18(a) limits
the joinder of claims. Rule 18(a) permits a plaintiff to join as many claims as it has against an
opposing party. Rule 20(a)(2) governs when multiple defendants may be joined in one action:
“[p]ersons . . . may be joined in one action as defendants if: (A) any right to relief is asserted
against them jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or
fact common to all defendants will arise in the action.”
Where multiple defendants are named, as in this case, the analysis under Rule 20
precedes that under Rule 18:
Rule 20 deals solely with joinder of parties and becomes relevant only when
there is more than one party on one or both sides of the action. It is not
concerned with joinder of claims, which is governed by Rule 18. Therefore,
in actions involving multiple defendants Rule 20 operates independently of
Rule 18. . . .
Despite the broad language of Rule 18(a), plaintiff may join multiple
defendants in a single action only if plaintiff asserts at least one claim to
relief against each of them that arises out of the same transaction or
occurrence and presents questions of law or fact common to all.
7 Charles Allen Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure Civil
§ 1655 (3d ed. 2001), quoted in Proctor v. Applegate, 661 F. Supp. 2d 743, 778 (E.D. Mich. 2009),
and Garcia v. Munoz, No. 08-1648, 2007 WL 2064476, at *3 (D.N.J. May 14, 2008); see also
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Neitzke v. Williams, 490 U.S. 319, 328 (1989) (joinder of defendants is not permitted by Rule 20
unless both commonality and same transaction requirements are satisfied).
The joinder of claims, parties, and remedies is “strongly encouraged” when
appropriate to further judicial economy and fairness. See United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 724 (1966). This does not mean, however, that parties have free reign to join
multiple defendants into a single lawsuit with multiple claims that are unrelated. See, e.g., Pruden
v. SCI Camp Hill, 252 F. App’x 436, 438 (3d Cir. 2007) (dismissing prisoner complaint with
“multiple constitutional violations that occurred over a span of seven years[,] . . . aris[ing] out of
different transactions and occurrences”). In short, “a civil plaintiff may not name more than one
defendant in his original or amended complaint unless one claim against each additional defendant
is transactionally related to the claim against the first defendant and involves a common question
of law or fact.” Proctor, 661 F. Supp. 2d at 778. When determining if civil rights claims arise
from the same transaction or occurrence, a court may consider a variety of factors, including, “‘the
time period during which the alleged acts occurred; whether the acts [] . . . are related; whether
more than one act . . . is alleged; whether the same supervisors were involved, and whether the
defendants were at different geographical locations.’” Id. (quoting Nali v. Mich. Dep’t of Corrs.,
2007 WL 4465247, *3 (E.D. Mich. Dec. 18, 2007)).
Permitting expansive joinder in a prisoner civil rights action would undermine the
purpose of the PLRA, which was to reduce the large number of frivolous prisoner lawsuits that
were being filed in the federal courts. See Riley v. Kurtz, 361 F.3d 906, 917 (6th Cir. 2004). Under
the PLRA, a prisoner may not commence an action without prepayment of the filing fee in some
form. See 28 U.S.C. § 1915(b)(1). These “new fee provisions of the PLRA were designed to deter
frivolous prisoner litigation by making all prisoner litigants feel the deterrent effect created by

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liability for filing fees.” Williams v. Roberts, 116 F.3d 1126, 1127-28 (5th Cir. 1997). The PLRA
also contains a “three-strikes” provision requiring the collection of the entire filing fee after the
dismissal for frivolousness, etc., of three actions or appeals brought by a prisoner proceeding in
forma pauperis, unless the statutory exception is satisfied. 28 U.S.C. § 1915(g). A prisoner could
attempt to avoid payment of multiple filing fees for what should be multiple lawsuits, or attempt
to a avoid a “strike,” by combining a raft of frivolous claims against many defendants in the hope
that at least one claim will survive dismissal. Thus, “[a] buckshot complaint that would be rejected
if filed by a free person—say, a suit complaining that A defrauded the plaintiff, B defamed him,
C punched him, D failed to pay a debt, and E infringed his copyright, all in different transactions—
should be rejected if filed by a prisoner.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
B. Analysis
1. Christiansen
The first defendant identified in the body of the complaint is Deputy Warden
Christiansen. (Id., PageID.75.) Christiansen has allegedly allowed Plaintiff to be harassed by the
“unseen,” “undisclosed civil servant.” (Id.) Plaintiff also contends that other officials are
somehow interfering with his “legal mail.” (Id.) Christiansen allegedly promised to address the
problem, but did not do so.
In addition, Plaintiff has complained to Christiansen about guards who “abuse their
authority by perp[e]trating a fraud by teaming up on [Plaintiff] and attempting to keep ‘civil unrest’
in house” (id., PageID.80), and about Plaintiff’s request to have his security level reduced (id.,
PageID.84). Apparently, Christiansen failed to remedy these issues. Plaintiff also contends that
Christiansen is “promoting violence” by not disciplining guards who are lying to other guards.
(Id., PageID.83.) All of the foregoing claims against Christiansen are properly joined.

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2. Haynes
Prisoner Counselor (PC) Haynes is another defendant named in the complaint.
Plaintiff has stated a claim against Haynes that is transactionally related to one of the claims against
Christiansen. Specifically, Plaintiff alleges that Christiansen spoke to Haynes about an issue with
Plaintiff’s legal mail, but the problem persisted. (Am. Compl., PageID.75.) Thus, Haynes is
properly joined as a defendant.
3. Other Defendants
None of the other claims against the other defendants are transactionally related to
any claim against both Defendants Christiansen and Haynes. Keeping the other defendants in this
action would not promote judicial economy and fairness. Moreover, it might encourage Plaintiff—
who has already filed a total of eight civil rights actions in this district, two of which were
dismissed for failure to state a claim—to continue to file scattershot complaints in an attempt to
avoid the consequences in 28 U.S.C. § 1915(g) of filing a third lawsuit that is frivolous, malicious,
or fails to state a claim. Accordingly, the other defendants are not properly joined in this action.
C. Remedy for Misjoinder
“Misjoinder of parties is not a ground for dismissing an action.” Fed. R. Civ. P.
21. Instead, Rule 21 provides two remedial options: (1) misjoined parties may be dropped on
such terms as are just; or (2) any claims against misjoined parties may be severed and proceeded
with separately. See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 572-73 (2004)
(“By now, ‘it is well settled that Rule 21 invests district courts with authority to allow a dispensable
nondiverse party to be dropped at any time[.]’”); DirecTV, Inc. v. Leto, 467 F.3d 842, 845 (3d Cir.
2006); cf. Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 682 (6th Cir. 1988)
(“[D]ismissal of claims against misjoined parties is appropriate.”). “Because a district court’s

7

decision to remedy misjoinder by dropping and dismissing a party, rather than severing the relevant
claim, may have important and potentially adverse statute-of-limitations consequences, the
discretion delegated to the trial judge to dismiss under Rule 21 is restricted to what is ‘just.’”
DirecTV, 467 F.3d at 845.
At least three judicial circuits have interpreted “on such terms as are just” to mean
without “gratuitous harm to the parties.” Strandlund v. Hawley, 532 F.3d 741, 745 (8th Cir. 2008)
(quoting Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000)); see also DirecTV, 467 F.3d
at 845. Such gratuitous harm exists if the dismissed parties lose the ability to prosecute an
otherwise timely claim, such as where the applicable statute of limitations has lapsed, or the
dismissal is with prejudice. Strandlund, 532 F.3d at 746; DirecTV, 467 F.3d at 846-47; Michaels
Bldg. Co., 848 F.2d at 682.
In this case, Plaintiff brings causes of action under 42 U.S.C. § 1983. For civil
rights suits filed in Michigan under § 1983, the statute of limitations is three years. See Mich.
Comp. Laws § 600.5805(10); Carroll v. Wilkerson, 782 F.2d 44 (6th Cir. 1986) (per curiam);
Stafford v. Vaughn, No. 97-2239, 1999 WL 96990, at *1 (6th Cir. Feb. 2, 1999). However,
“Michigan law provides for tolling of the limitations period while an earlier action was pending
which was later dismissed without prejudice.” Kalasho v. City of Eastpointe, 66 F. App’x 610,
611 (6th Cir. 2003).
The actions about which Plaintiff complains occurred in October 2015 or sometime
thereafter, well within the three-year period of limitations when he filed his complaint. Thus, his
claims against the misjoined parties are not at risk of being time-barred if those parties are dropped
from this action. He will have ample time to refile any new actions. Accordingly, under the

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Court’s authority in Rule 21, the Court will dismiss without prejudice all defendants other than
Defendants Christiansen and Haynes.
III.

Failure to state a claim

After dismissal of the defendants other than Christiansen and Haynes, the Court
must determine whether to serve the complaint. Under the Prison Litigation Reform Act, Pub. L.
No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action
brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28
U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c).

The Court must read Plaintiff’s pro se

complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s
allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez,
504 U.S. 25, 33 (1992).
A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
679. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it

9

asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not
‘show[n]’ – that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.
8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the
Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under
28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
A. Christiansen
Plaintiff alleges that Defendant Christiansen did not respond to Plaintiff’s
complaints about other prison officials and did not properly supervise other officers. Government
officials may not be held liable for the unconstitutional conduct of their subordinates under a theory
of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t
of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A
claimed constitutional violation must be based upon active unconstitutional behavior. Grinter v.
Knight, 532 F.3d 567, 575-76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002).
The acts of one’s subordinates are not enough, nor can supervisory liability be based upon the

10

mere failure to act. Grinter, 532 F.3d at 576; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d
881, 888 (6th Cir. 2004). Moreover, § 1983 liability may not be imposed simply because a
supervisor denied an administrative grievance or failed to act based upon information contained in
a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead
that each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff has failed to allege that Defendant
Christiansen actively engaged in any unconstitutional behavior. Accordingly, Plaintiff fails to
state a claim against him.
B. Haynes
Plaintiff makes a number of different allegations against Defendant Haynes.
1. Legal mail
Plaintiff alleges that certain co-workers of Defendant Christiansen, including
Defendant Haynes, “harass” Plaintiff by ignoring a MDOC policy regarding “legal mail.” (Am.
Compl., PageID.75.) Plaintiff asserts,
[C]ertain (‘mail’) that I send to various agencies or offices that constitutes as ‘Legal
Mail’ but they ignore DOM 2009-18 “Prisoner to Prisoner Mail.” Because it[’]s so
deeply-rooted [Haynes] has been trained to ignore that fact and to deprive the
plaintiff this right[.]
(Id.)
This claim fails because it is too vague to state a plausible claim. Plaintiff does not
specify what Haynes actually did. It is not clear what Plaintiff means when he alleges that Haynes
ignored a prison regulation. This allegation is more of a conclusion than a statement of fact.
Moreover, it is not clear how a policy covering “prisoner to prisoner mail” would even apply to
mail that Plaintiff is sending to outside entities. Thus, Plaintiff has failed to allege anything that
would give rise to a plausible claim against Haynes with respect to Plaintiff’s legal mail.
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Even if Haynes ignored or violated a prison policy, Plaintiff has not alleged enough
to state a claim under § 1983. An alleged failure to comply with an administrative rule or policy
does not itself rise to the level of a constitutional violation. Laney v. Farley, 501 F.3d 577, 581
n.2 (6th Cir. 2007); Brody v. City of Mason, 250 F.3d 432, 437 (6th Cir. 2001); McVeigh v. Bartlett,
No. 94-23347, 1995 WL 236687, at *1 (6th Cir. Apr. 21, 1995) (failure to follow policy directive
does not rise to the level of a constitutional violation because policy directive does not create a
protectible liberty interest). Section 1983 is addressed to remedying violations of federal law, not
state law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982); Laney, 501 F.3d at 580-81.
Accordingly, for all the foregoing reasons, the claim against Haynes regarding Plaintiff’s legal
mail will be dismissed for failure to state a claim.
2. Supervisor role
Plaintiff also alleges that Haynes did not “[take] charge as a supervisor” when
another officer challenged Plaintiff to a fight, and did not follow a prison policy that would have
separated Plaintiff from this employee. (Am. Compl., PageID.79.) This does not state a claim.
For the reasons already stated with respect to Defendant Christiansen, Haynes is not liable as a
supervisor for the actions of other officers, and is not liable merely because she failed to follow
prison policy. Plaintiff does not allege that Haynes was deliberately indifferent to a risk of serious
harm to Plaintiff, as would be necessary to state an Eighth Amendment claim against her. See
Farmer v. Brennan, 511 U.S. 825, 833 (1994); Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir.
2010).
3. Security level
Plaintiff also contends that Haynes promised to have Plaintiff moved to a lower
security level, but this move did not happen. (Am. Compl., PageID.84.) These allegations do not

12

state a claim because a prisoner has no constitutional right to be incarcerated in a particular facility
or to be held in a specific security classification. See Olim v. Wakinekona, 461 U.S. 238, 245
(1983); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Meachum v. Fano, 427 U.S. 215, 228-29
(1976); accord Harris v. Truesdell, 79 F. App’x 756, 759 (6th Cir. 2003) (holding that prisoner
had no constitutional right to be held in a particular prison or security classification); Carter v.
Tucker, 69 F. App’x 678, 680 (6th Cir. 2003) (same).
Plaintiff apparently contends that Haynes is retaliating against Plaintiff in regards
to Plaintiff’s security level, but this assertion is wholly conclusory. Retaliation based upon a
prisoner’s exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order to set forth a First Amendment
retaliation claim, a plaintiff must establish that: (1) he was engaged in protected conduct; (2) an
adverse action was taken against him that would deter a person of ordinary firmness from engaging
in that conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct.
Id. Moreover, a plaintiff must be able to prove that the exercise of the protected right was a
substantial or motivating factor in the defendant’s alleged retaliatory conduct. See Smith v.
Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001). Plaintiff fails to allege any facts from which to
infer that Haynes took any adverse action against Plaintiff in response to any protected conduct.
In short, Plaintiff fails to state a claim against Defendants Christiansen and Haynes.
Accordingly, they will be dismissed for failure to state a claim.
IV.

Other Motions

Plaintiff has also filed a motion for “evidentiary tools” (ECF No. 9), a motion for
evidentiary materials (ECF No. 11), a motion for a preliminary injunction (ECF No. 16), a motion
for a restraining order (ECF No. 18), a motion to compel the court to take action (ECF No. 22), a

13

motion for extension of time (ECF No. 24), and a motion for appointment of counsel and a private
investigator (ECF No. 25).
Because the Court will dismiss the action, these motions are moot and will be
denied as such. Moreover, to the extent the Court must evaluate whether to appoint counsel before
dismissing the complaint, the Court finds that appointment of counsel is not warranted. Indigent
parties in civil cases have no constitutional right to a court-appointed attorney. Abdur-Rahman v.
Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601, 604-05
(6th Cir. 1993). The Court may, however, request an attorney to serve as counsel, in the Court’s
discretion. Abdur-Rahman, 65 F.3d at 492; Lavado, 992 F.2d at 604-05; see Mallard v. U.S. Dist.
Court, 490 U.S. 296 (1989).
Appointment of counsel is a privilege that is justified only in exceptional
circumstances. In determining whether to exercise its discretion, the Court should consider the
complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent ability to
prosecute the action without the help of counsel. See Lavado, 992 F.2d at 606. The Court has
carefully considered these factors and determines that, at this stage of the case, the assistance of
counsel does not appear necessary to the proper presentation of Plaintiff’s position. Accordingly,
all of the foregoing motions, including Plaintiff’s motion for appointmentof counsel, will be
denied.
Conclusion
In summary, the Court will grant Plaintiff’s motion to amend/supplement the
complaint (ECF No. 12). The Court will dismiss without prejudice all defendants other than
Defendants Christiansen and Haynes under the Court’s authority in Rule 21 of the Federal Rules
of Civil Procedure. In addition, after conducting the review required by the Prison Litigation

14

Reform Act, the Court determines that Defendants Christiansen and Haynes must be dismissed
with prejudice for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C.
§ 1997e(c). Plaintiff’s other motions will be denied.
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.
The Court will enter an Order and Judgment consistent with this Opinion.

Dated:

October 15, 2018

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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