Israfil v. Woods

Filing 264

ORDER denying 238 Motion to reopen discovery; denying 248 Motion to Appoint Counsel. Signed by Magistrate Judge Stephanie K. Bowman on 7/22/13. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MUMIN ISRAFIL,

Case No. 1:09-cv-468
Plaintiff,

Spiegel, J.
Bowman, M.J.

v.
BARBARA WOODS, et al.,
Defendant.

MEMORANDUM ORDER
I. Background
Plaintiff initiated this suit more than four years ago while incarcerated at the
Warren Correctional Institution (WCI) in Lebanon, Ohio. Plaintiff initially proceeded pro
se, was appointed counsel sua sponte by this Court in November of 2009, but since
August 2010, has again proceeded pro se.

After Plaintiff’s first appointed counsel

withdrew, the Court denied Plaintiff’s request to appoint new counsel. (See motion at
Doc. 63, denied by Order at Doc. 66, objections overruled by Order at Doc. 152). In
September 2012, Plaintiff again renewed his request for the appointment of counsel
(Doc. 237); that motion was denied by the undersigned magistrate judge shortly
thereafter. (Doc. 240).
On December 19, 2012, Plaintiff filed what he captioned as a “second” motion for
the appointment of counsel. (Doc. 248). In addition to that motion, Plaintiff has filed a
motion seeking relief from judgment in order to reopen discovery (Doc. 238). Both of
these non-dispositive motions remain pending before the undersigned magistrate judge.

A motion for summary judgment, a prior Report and Recommendation on the same, and
objections thereto (Docs. 234, 241, 246, 247) all remain pending before the presiding
district judge. On January 17, 2013, Senior District Judge S. Arthur Spiegel held all of
these pending motions in abeyance in light of Plaintiff’s interlocutory appeal. (Doc.
249). Because Plaintiff’s appeal was recently dismissed for want of prosecution (Doc.
262), it is now appropriate for this Court to resume jurisdiction and rule on the pending
motions.
II. Pending Non-Dispositive Motions
For the convenience of this Court, the undersigned’s September 2012 analysis of
Plaintiff’s request for the appointment of counsel is repeated verbatim.
A. Plaintiff’s Motion for the Appointment of Counsel
Before reviewing Plaintiff’s current request [Doc. 237], it is helpful to
look back at the facts relating to the initial appointment of counsel,
summarized in the Court’s September 9, 2010 R&R:
In view of the serious nature of plaintiff’s allegations [relating to his
allegedly serious need for medical care], the Court requested the
assistance of the attorneys from the Ohio Justice and Policy
Center to represent plaintiff in this case. (Doc. 32). Counsel
agreed to the appointment and filed an amended complaint and
motion for temporary restraining order/preliminary injunction on
plaintiff’s behalf. (Docs. 42, 43).
A hearing on the motion was scheduled for June 28, 2010. In the
meantime, counsel for plaintiff and defendants attempted to
resolve the medical issues raised by the motion for temporary
restraining order/preliminary injunction without Court intervention.
This included an agreement to have plaintiff undergo an
independent medical examination by Dr. Carole Miller, M.D., a
neurosurgeon at the Ohio State University Medical Center, to
determine the status of plaintiff’s medical condition and
recommendations for treatment. The undersigned traveled to the
Warren Correctional Institution on June 10, 2010 to have a faceto-face meeting with Mr. Israfil and help facilitate communication

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between Mr. Israfil, all counsel, and the Court in an effort to reach
a speedy resolution of the medical issues raised by plaintiff’s
motion.
Thereafter, the parties agreed to stay the hearing on the motion
pending the independent medical examination by Dr. Miller. (Doc.
57). The parties were ordered to advise the Court whether a
hearing on the motion would be necessary following the
examination by Dr. Miller. Id.
On July 29, 2010, Mr. Israfil underwent an examination by Dr.
Miller at the Outpatient Clinic at the Ohio State University
Hospital.
On August 18, 2010, Mr. Israfil filed a pro se motion for removal of
his appointed attorneys based on fundamental disagreements
about the course of representation in his case. He also moved for
the appointment of successor counsel. (Doc. 63). Following a
telephone conference with the Court at which pro se plaintiff
Mumin Israfil, his counsel, and counsel for defendants were
present, the Court granted Mr. Israfil’s motion for removal of
appointed attorney. (Doc. 66). However, the Court denied Mr.
Israfil’s request for successor counsel because it was apparent to
the undersigned from Mr. Israfil’s court filings and letters, as well
as the Court’s face-to-face meeting with Mr. Israfil, that he
believes his approach to this litigation is the best one and that
appointment of successor counsel would be futile. Id.
(Doc. 81 at 2-3).
…..
In his recent [September 2012] request for the appointment of
counsel, Plaintiff argues that he requires the assistance of counsel to
obtain additional discovery, and because this case is so “complex” that
Plaintiff cannot litigate it without professional assistance. Of course,
Plaintiff has in fact been litigating this case pro se for most of the three
years it has been pending. Plaintiff’s efforts have borne some fruit, insofar
as two of his claims against Defendant Sexton have survived summary
judgment. On the other hand, given the dismissal of all other claims and
Defendants, this case is far less complex than it was at the time when
counsel was first appointed on Plaintiff’s behalf. Given these realities, and
while acknowledging the presiding district judge’s discretion to reach a
different conclusion, I find no basis for the appointment of counsel at this
time.

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(Doc. 240 at 1-3).
No new information in Plaintiff’s December 2012 motion alters the above analysis
of Plaintiff’s September 2012 motion for the appointment of counsel. The only change
is that in his December 2012 renewed request, Plaintiff seeks counsel in order to
participate in alternative dispute resolution proceedings, in hopes of extracting a
settlement from Defendant Sexton prior to trial. Plaintiff has attached, as exhibits to his
motion, copies of letters to attorneys from whom he has unsuccessfully sought
representation in the past.

However, the undersigned is reluctant to seek the

representation of counsel even for the limited purpose of alternative dispute resolution
proceedings in this Court, given the lengthy history of this case, Plaintiff’s demonstrated
difficulty working with appointed counsel, and the fact that the case is now ready for trial
before Judge Spiegel.
B. Motion to Reopen Discovery
Presumably in part because of the pending appeal, as well as perhaps because
of changes in defense counsel (see Docs. 245, 259, 263), Defendants filed no response
to Plaintiff’s separate motion requesting the reopening of discovery and an evidentiary
hearing concerning Plaintiff’s sole remaining claims against Defendant Sexton (Doc.
238).
Defendant Sexton was added as a defendant during the period of time when
Plaintiff was represented by counsel. If the undersigned’s last R&R is adopted (Doc.
241), the only claims that will remain in this litigation concern Plaintiff’s allegations that
Defendant Sexton is liable in his individual capacity for demonstrating retaliatory
conduct and using excessive force against Plaintiff on or about June 12, 2009, while

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transporting Plaintiff to an off-site facility for a neurology appointment.

Discovery

against Sexton closed more than two years ago. In his pending motion, Plaintiff asserts
that he timely served Defendant Sexton written discovery requests early in this case,
but that Defendant Sexton has “evade[d]” fully responding to prior requests. (Doc. 238
at 2).
Given the 263 docket entries in this case to date, and the fact that it has been
pending for more than four years, to state that Plaintiff has engaged in an active motion
practice would be an understatement.

The record reflects numerous discovery

disputes, the vast majority of which have been resolved against Plaintiff.

Despite

Plaintiff’s general plea for more discovery from Defendant Sexton, Plaintiff fails to
identify any specific written request concerning his claim against Sexton to which
Defendant Sexton previously failed to respond. 1 For that reason, as well as the lack of
timeliness of Plaintiff’s motion, the motion to reopen discovery will be denied.
III. Conclusion and Order
Accordingly, IT IS ORDERED THAT:
1. Plaintiff’s motion to reopen discovery against Defendant Sexton and/or for an
evidentiary hearing on his discovery request (Doc. 238) is DENIED;
2.

Plaintiff’s last motion for the appointment of counsel for the purpose of

conducting alternative dispute resolution proceedings (Doc. 248) is likewise DENIED at

1

In an exhibit to his renewed request for the appointment of counsel, Plaintiff alludes to Requests
for Interrogatories directed to Defendant Sexton wherein Plaintiff allegedly sought proof that Sexton
attempted to “defraud the federal court by initially falsely claiming that he had not been served the
complaint & summons.” (Doc. 248-1 at 4). Plaintiff allegedly seeks the referenced “interrogatory
responses for impeachment purposes.” (Id., emphasis original). To the extent that Plaintiff’s motion to
reopen discovery seeks to compel such responses, the undersigned would deny the motion on grounds
of timeliness, and because the requested discovery is not relevant.

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this time. Of course, the trial judge retains the discretion to appoint counsel to the
extent that he deems it advisable, or to refer the matter to the magistrate judge for
participation in the Court’s Pro Se Mediation Program;
3.
magistrate

All pretrial matters having been fully resolved before the undersigned
judge,

the

pending

motion

for

summary

judgment,

Report

and

Recommendation, and objections thereto shall be recommitted to the presiding district
judge for resolution.

Plaintiff’s lone remaining claim(s) against Defendant Sexton may

be set for trial at the discretion of Judge Spiegel.

s/ Stephanie K. Bowman_____
Stephanie K. Bowman
United States Magistrate Judge

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