Bogan v. Brunsman et al

Filing 25

ORDER denying 13 Motion re unannounced search; denying 14 Motion to Appoint Counsel. Signed by Magistrate Judge Stephanie K. Bowman on 2/16/12. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CLARENCE BOGAN, III,

Case No. 1:11-cv-259

Plaintiff,

Barrett, J.
Bowman, M.J.

vs.
TIMOTHY BRUNSMAN, et al.,
Defendants
MEMORANDUM OPINION
Plaintiff, an inmate at the Lebanon Correctional Institution (LeCI) in Lebanon, Ohio,
brings this action against LeCI Warden Timothy Brunsman and the Director of the Ohio
Department of Rehabilitation and Correction Gary C. Mohr. Plaintiff’s pro se complaint
alleges numerous violations of his rights as a result of his incarceration at LeCI. This
matter is now before the Court on Plaintiff’s motion for “Unannounced Search of the
Lebanon Correctional Institution and the Ohio Department of rehabilitation and Corrections
for the Specific purpose of Confiscating Specific Records.” (Doc. 13). Also before the Court
is Plaintiff’s motion to appoint counsel. (Doc.14). Upon careful review, the Court finds that
Plaintiff’s motions are not well-taken, and are herein DENIED.
Plaintiff’s motion to search asks the Court to “Order the U.S. Dept. of Justice, FBI,
U.S. Marshall to enter Lebanon Correctional Institution and seize all of Plaintiff’s records
and all of the records of Warden Brunsman, Deputy Warden Harris [and] David Hudson,
Lt. Bendell. . . .” (Doc. 13). Plaintiff also asks for a member of the U.S. Department of
Justice or FBI to interview him for the purpose of determining what should be seized. Upon
close inspection, Plaintiff’s motion is liberally construed as request for discovery in order

to obtain certain documents relevant to this action. Although Plaintiff has been granted in
forma pauperis status (See Doc. 11), there is no constitutional or statutory requirement that
the government or Defendant pay for an indigent prisoner's discovery efforts. Smith v.
Yarrow, 78 Fed. Appx. 529, 544 (6th Cir. 2003).
Furthermore, the Federal Rules of Civil Procedure do not require or contemplate that
routine motions seeking discovery be filed with the court. Rather, civil litigants should use
the relevant rules to exchange discovery and to obtain requested discovery directly from
opposing counsel without the necessity of any motion. Only when those efforts fail, and
a party certifies precisely what efforts he or she made to obtain the requested discovery,
may a motion to compel discovery be filed with the court. See generally, Rule 37, Fed. R.
Civ. P. In this case, there is no indication that Plaintiff has submitted a discovery request
for these documents directly to the Defendants.1 Accordingly, Plaintiff’s motion (Doc. 13)
is premature and is DENIED.
Next, Plaintiff seeks the appointment of counsel on grounds that he is indigent and
incarcerated. (Doc. 14). Having reviewed Plaintiff’s complaint, I find Plaintiff’s claims to
be straightforward, and no more complex than thousands of similar claims filed by pro se
prisoners each year in the federal courts. Plaintiff’s motion for the appointment of counsel
will therefore be denied based upon the general principle that civil litigants have no
constitutional right to the appointment of counsel at government expense. See Anderson
v. Sheppard, 856 F.2d 741 (6th Cir. 1988). The instant case simply does not present the

1

Notably, at the time the instant motions were filed - November 10, 2011 - Defendants had not
yet been properly served. On January 30, 2012, the United States Marshall was Ordered to serve
Defendants with a copy of the summons and complaint. (Doc. 19).

2

type of “exceptional circumstances” that would justify the rare appointment of free counsel
for a pro se civil litigant. Lavado v. Keohane, 992 F.2d 601, 605-606 (6th Cir. 1993).
Plaintiff’s motion to appoint counsel (Doc. 14) is therefore DENIED.
IT IS SO ORDERED.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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