Cody v. Slusher et al

Filing 28

Opinion & Order signed by Judge James S. Gwin on 5/15/19. The Court, for the reasons set forth in this order, denies plaintiff's motion for an extension, denies plaintiff's motion for appointment of counsel, and orders plaintiff to file a new complaint not exceeding 20 pages within 30 days. (Related Docs. 24 and 27 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------------------:
JOHN CODY,
:
:
Plaintiff,
:
:
vs.
:
:
CORRECTIONS OFFICER KAREN
:
SLUSHER, et al.,
:
:
Defendants.
:
:
------------------------------------------------------------------

Case No. 1:17-cv-132
OPINION & ORDER
[Resolving Docs. 24, 27]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this prison abuse case, pro se Plaintiff John Cody seeks an extension to file a
notice of appeal and asks for the appointment of counsel. Cody also responds to this
Court’s order to show cause.
In June 2018, Cody moved to amend his complaint.1 The Court denied that motion,
as it attempted to resurrect previously dismissed claims.2 Cody now asks the Court for an
extension of time to file a notice of appeal for that decision.3
However, federal appellate courts only review a district court’s final decisions.4 The
Court’s denial of Cody’s motion to amend is not a final case-closing determination, so
Cody may not yet appeal the decision.5 Thus, the Court denies his extension motion.
Cody also asks the Court to appoint counsel.6 Because this is a civil case, Cody has

1

Doc. 14.
Doc. 15.
3
Doc. 24.
4
28 U.S.C. § 1291.
2

See e.g., JPMorgan Chase Bank, N.A. v. Winget, 920 F.3d 1103, 1105 (6th Cir. 2019) (“A final decision generally
is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” (internal
quotation marks omitted)).
6
Doc. 27.
5

Case No. 1:17-cv-132
Gwin, J.

no constitutional right to counsel.7 While the Court “may request an attorney to represent
any person unable to afford counsel,”8 it should only do so in “exceptional
circumstances.”9 The Court considers: (i) the complexity of the case, (ii) the plaintiff’s
ability to represent himself, and (iii) the plaintiff’s chances of success.10
Here, while Cody may ultimately succeed, the other two factors cut against
appointment. As Cody himself concedes, this is not a complex case.11 Further, Cody
seems capable of representing himself. His briefs are well-written, well-researched, and
competent. In fact, Cody has already won an appeal in this case.12 Accordingly, this is not
the exceptional case that warrants appointment. The Court denies Cody’s request.
The Federal Rules of Civil Procedure require the complaint to include a short and
plain statement of the claims.13 Noting that Cody’s nearly 500-page complaint was neither,
the Court ordered Cody to file a new complaint, not exceeding twenty pages, by March 14,
2019.14 The Court then extended that time to April 15th.15 When Cody missed that
deadline, the Court ordered him to show cause why the case should not be dismissed.16
Cody claims that his incarceration has prevented him from complying.17
Recognizing the difficulties of litigating while in prison, the Court will allow Cody thirty
additional days to comply with the Court’s order. It will grant no further extensions.

7

Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993).

8

28 U.S.C. § 1915(e)(1).
Lavado, 992 F.2d at 606.

9

10

Id.

11

Doc. 27 at 5.

12

Cody v. Slusher, No. 17-3764, 2018 WL 3587003 (6th Cir. Mar. 8, 2018).

13

Fed. R. Civ. P. 8(a)(2).
Doc. 19.
15
Doc. 23.
16
Doc. 25.
17
Cody alleges, inter alia, that prison officials have confiscated his case notes, that he has been unable to access
the prison law library due to lockdowns, and that gang activity in his area has made drafting impossible. Doc. 26.
14

-2-

Case No. 1:17-cv-132
Gwin, J.

For the foregoing reasons, the Court DENIES Plaintiff’s motion for an extension,
DENIES Plaintiff’s motion for appointment of counsel, and ORDERS Plaintiff to file a new
complaint not exceeding twenty pages within thirty days.
IT IS SO ORDERED.

s/

Dated: May 15, 2019

James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

-3-