Andwan v. Greenhills, Village of et al
MEMORANDUM OPINION AND ORDER denying 193 Second Motion for Reconsideration for reconsideration of the Court's prior orders denying her the appointment of counsel and/or additional stays of this litigat ion. A courtesy copy of this Order shall be transmitted to Dr. Patrick Swanson at Talbert House, 5837 Hamilton Ave., Cincinnati, OH 45224. Signed by Magistrate Judge Stephanie K. Bowman on 1/18/17. (sct)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
PATRICIA A. ANDWAN,
Case No. 1:13-cv-624
VILLAGE OF GREENHILLS, et al.,
MEMORANDUM OPINION AND ORDER
More than three years ago, Plaintiff Patricia Andwan, through experienced
counsel, paid the requisite filing fee and initiated this civil rights suit. 1
subsequently withdrew, and with the notable exception of representation by a second
attorney for a four-month period in 2015, Plaintiff has prosecuted her claims pro se
Pursuant to local practice, all pending motions have been referred to the
undersigned magistrate judge.
Currently pending before the undersigned is a motion labeled as a “second
motion for reconsideration” of a prior order by then-presiding Senior District Judge
Beckwith, 2 which order (Doc. 187) overruled Plaintiff’s objections to a prior order of the
undersigned. (Doc. 190). The original order (and Judge Beckwith’s subsequent order)
both denied Plaintiff’s motion seeking the appointment of counsel, as well as Plaintiff’s
motion to stay proceedings.
Plaintiff’s latest motion for reconsideration of all prior
related orders (Doc. 193) also will be denied.
Plaintiff has never proceeded in forma pauperis in this litigation.
This case was recently reassigned to U.S.District Judge Michael R. Barrett.
To provide better context for the Court’s denial of Plaintiff’s latest motion for the
appointment of counsel (or second motion for reconsideration of prior orders denying
counsel and for a stay of proceedings), the undersigned has attempted to summarize
relevant background concerning Plaintiff’s prior retention of counsel over the three year,
four month history of this case, as well as relevant facts pertaining to her representation
When counsel first filed this case on Plaintiff’s behalf on September 9, 2013, the
Court entered a calendar that included a trial date of December 8, 2014. (Docs. 11, 12).
That date was vacated after, based upon a “severe and fundamental disagreement as
to how this case should be litigated,” the team of three attorneys originally retained by
Plaintiff were permitted to withdraw on February 18, 2014. (Doc. 16).
The affidavit of
one of Plaintiff’s attorneys explained that he had communicated with Plaintiff “in person,
via telephone, and by email dozens of times concerning the complaint, witness lists, and
particular items of discovery,” but that it had become apparent “Plaintiff has
irreconcilable differences of opinion with her counsel as to how this case should
proceed” despite “numerous attempts to resolve these differences.” (Doc. 14-1).
The Court stayed proceedings to allow Plaintiff time to retain new counsel, but
she was unable to do so despite stating that she had contacted and been rejected by
more than thirty attorneys. Therefore, the Court advised that – to the extent she desired
to continue to prosecute her case - she must proceed pro se, denying Plaintiff’s
additional requests for lengthy stays. (See Doc. 21, holding that “[t]he Court will not
give Plaintiff another four months” to retain counsel, but would instead continue the
existing stay only until April 30, 2014).
On April 14, 2014, Plaintiff was granted leave to file motions and other
From that date through today, Plaintiff has
successfully filed (pro se) more than sixty documents in the record.
Among those documents were several motions that, while not directly seeking
the appointment of counsel, complained that this Court had an obligation “to assure
Plaintiff is represented by counsel at all times” (Doc. 45 at 1), and that the Court
“disregarded Plaintiff’s interests in being represented by counsel” in permitting Plaintiff’s
original attorneys to withdraw. Plaintiff also requested “mediation” between her former
lawyers and herself. Judge Beckwith overruled those objections, explaining that no rule
required the appointment of counsel for Plaintiff. (See Doc. 59, Order of 7/16/14 at 4).
Plaintiff paid a $505 filing fee in order to pursue an interlocutory appeal, which the Sixth
Circuit denied and dismissed on September 25, 2014. (Doc. 66).
The case continued to proceed, with the undersigned ruling on multiple motions
referred to her, and with Plaintiff frequently filing objections. In those objections, Plaintiff
continued to challenge the Court’s order permitting her original attorneys to withdraw –
challenges that Judge Beckwith continued to reject. (Doc. 93, Order of 12/24/14 at 3).
In one order, Judge Beckwith wrote:
Plaintiff is specifically cautioned that her baseless accusations and
flagrant misstatements of fact regarding this Court, its judicial officers and
employees, must stop. If she continues with this course of conduct, she
will be subject to the imposition of sanctions, which may include the
dismissal of her lawsuit. This admonition fully applies to Plaintiff’s equally
baseless accusations against the Magistrate Judge, whom Plaintiff
complains was “politically hired” and is biased against her.
The Court also rejects Plaintiff’s suggestion that anything that the
Magistrate Judge has done or said has delayed this case due to bias
against Plaintiff. Indeed, the record shows that Plaintiff’s own actions and
decisions regarding her lawsuit have resulted in the delays of which she
(Doc. 93 at 4).
In January 2015, Plaintiff retained new counsel, who was thereafter granted
leave to file an otherwise untimely second amended complaint, based in part upon the
agreement of all opposing counsel. (Docs. 103, 157). The Court promptly entered a
new scheduling order, permitting new counsel an extension of the prior discovery
deadline, and resetting trial for April 18, 2016. (Doc. 105). On April 15, 2015, Judge
Beckwith granted partial judgment on the pleadings on Plaintiff’s claim for intentional
infliction of emotional distress against the Village of Greenhills, and on Plaintiff’s assault
and battery claims against both the Village and Defendant Andrew Moore. (Doc. 114).
Shortly thereafter on May 5, 2015, Plaintiff filed a “notice” that she had terminated her
second retained counsel; counsel simultaneously moved to withdraw. (Docs. 119, 120).
Counsel’s motion to withdraw stated that he had been “the recipient and
respondent to over 400 e-mails from the Plaintiff” over the span of four months, had
copied Plaintiff on every communication, but still was informed by Plaintiff that she was
terminating him for allegedly failing to fully inform her “on the progress of her case.”
(Doc. 120 at 1). Counsel expressed his belief that “Plaintiff seeks unrealistic control and
command over the lawyer who represents her and that demand has interfered with the
undersigned’s ability to exercise independent judgment in deciding what litigation
course to take in this case, engage in a meditative and deliberative process to prepare
this case, and created a very difficult to carry on relationship with a client who insists on
being in effect co-counsel without the assent of the undersigned.” (Doc. 120 at 2).
Judge Beckwith granted the motion to withdraw for the reasons stated in counsel’s
motion. (Doc. 121). Plaintiff’s objections to Judge Beckwith’s order were overruled.
Plaintiff filed several motions and documents in which she sought to stay ongoing
discovery and continue her case pending receipt of her case file from her second
terminated attorney, with additional time to “locate and interview” prospective new
(See, e.g., Docs. 117, 118, 119, 125).
Because Plaintiff subsequently
acknowledged receipt of her case file, the undersigned cautioned Plaintiff about further
delays, reiterating language in prior orders, while granting Plaintiff a short extension for
completion of fact discovery to July 30, 2015. (Doc. 127, Order of 6/30/15). Noting that
“the progress of this litigation has been painstakingly slow,” the Order also reiterated
that “[m]ore than a year ago…the undersigned attempted to make clear to Plaintiff that
neither her pro se status nor her desire to interview and retain new replacement counsel
justifies further extensions or delay,” (Id. at 6).
On August 3, 2015, the undersigned ruled on a series of motions filed by Plaintiff.
That Memorandum Order granted Plaintiff’s request for an in-person case management
conference, and also granted Plaintiff’s request to bring a “companion” to that
conference, with the caveat that Plaintiff would not be permitted to “appear” through
representation by a non-attorney, and that the companion would not be permitted to
interfere with or cause any obstruction to case proceedings but merely could
accompany Plaintiff. (Doc. 133).
On August 14, 2015, the undersigned conducted a lengthy preliminary pretrial
conference, to which Plaintiff brought her lay companion. The Court’s subsequent order
reminded Plaintiff (as she had been repeatedly reminded previously) of her obligations
to adhere to all applicable civil rules of procedure and trial procedures, as pro se
litigants are not excused from such obligations.
The Order ruled on
multiple objections raised by Plaintiff to various discovery responses transmitted to her
by Defendants. “[A]t least some of what Plaintiff believes are examples of incivility or
‘falsified reports’ in the documents filed of record have not been inappropriate filings or
representations, but in fact reflect no more than relatively common practices of
experienced counsel, conveyed in legal parlance that has been misinterpreted by the
pro se Plaintiff.” (Id., PageID 1190-1191). Still, the Order reflects the undersigned’s
attempt to mediate between defense counsel and Plaintiff and to accommodate as
many of Plaintiff’s requests as possible, while reiterating that neither this Court nor its
employees can provide Plaintiff with legal advice. For example, defense counsel readily
agreed to Plaintiff’s request that during any deposition of police officers conducted by
Plaintiff, they would appear without their service weapons and remove their hats. (Id. at
n.5, PageID 1191).
On September 28, 2015, Plaintiff filed a motion seeking a 60-day extension
based upon her enrollment in a day treatment program at Good Samaritan Hospital
through mid-October 2015, for mental health issues. (Doc. 138). The Court granted the
Plaintiff filed additional motions relating to her objections to the Defendants’
discovery responses and seeking additional accommodations from this Court, including
but not limited to an additional lengthy extension of pretrial deadlines. On December
30, 2015, the undersigned filed a 14-page Memorandum Order that again attempted to
address Plaintiff’s numerous motions and concerns, despite the fact that several
motions were procedurally improper. “[I]n direct contrast to this Court's normal
procedures to discuss discovery issues with the Court informally, in an effort to keep
this case moving and to make a clear record, the Court will attempt to address the
concerns herein.” (Doc. 145 at 2, PageID 1398). A number of the Court’s rulings in the
12/30/15 Order noted that the same concerns had been discussed (and the same
rulings made) at the prior in-person pretrial conference attended by Plaintiff. Ultimately,
the undersigned overruled many of Plaintiff’s objections to Defendants’ discovery
responses, while ordering Defendants to produce some additional discovery. The Court
also granted Plaintiff’s request for further extension of pretrial deadlines, noting it had
been “generous” with extensions to date and would “not be inclined to extend these
deadlines any further without exceptional good cause being shown.” (Id. at 11, PageID
Defendants objected to the undersigned’s order compelling additional production
of discovery, in part on the merits and in part based upon Plaintiff’s failure to comply
with civil rules and the trial procedures of this Court. Judge Beckwith overruled all
objections, noting the “herculean and extraordinary efforts” undertaken by the
undersigned to mediate the discovery dispute between the parties and to “fashion a way
forward and …expeditiously resolve the disputes” given the posture of the case and
Plaintiff’s pro se status. (Doc. 156). Judge Beckwith also expressed concern with the
lengthy delays in the case, and reiterated prior warnings to Plaintiff that her pro se
status “does not exempt her from diligently prosecuting her case and complying with the
rules of law and of this Court.” (Id. at 5, PageID 1701). Judge Beckwith stated that she
was not inclined to further extend discovery deadlines “absent the most extraordinary
circumstances.” (Id. at PageID 1702).
On April 7, 2016, the undersigned denied a motion by Plaintiff to reinstate an
earlier pro se version of her amended complaint, as well as a motion seeking another in
person conference. (Doc. 157).
The Order noted that the Court had made the same
ruling (denying Plaintiff’s attempts to reinstate the prior amended complaint) on prior
occasions, and reiterated the Court’s significant concern with the pace of the litigation.
The Court also reiterated prior express warnings made by both the undersigned and the
presiding district judge against seeking extensions of the remaining pretrial deadlines.
In denying Plaintiff’s request for an additional discovery-related conference, the
undersigned noted that Judge Beckwith had already set a pretrial conference for May
16, 2016. (Id.) Judge Beckwith denied Plaintiff’s objections and motion to stay the April
7, 2016 Order of the undersigned, finding that most of Plaintiff’s objections “simply
repeat contentions she has raised in prior motions….” (Doc. 162 at 2; see also Doc.
Following the May 16, 2016 pretrial conference, Judge Beckwith set aside pretrial
deadlines pending further review and a follow-up case conference scheduled for June 1,
2016. (Doc. 165).
At the June 1 conference, Judge Beckwith established new
dispositive deadlines that “are not to be extended.” (Doc. 168). In a written Order of
June 7, 2016, the Court reiterated that the written discovery deadline of March 4, 2016
had “long since passed” and would not be further extended beyond the resolution of
several pending disputes concerning previously served requests.
Court overruled Plaintiff’s various requests seeking advice on how to manage and
organize previously produced discovery, reiterating Plaintiff’s responsibilities as a pro se
litigant. (Id.). The Court extended time for the parties to complete oral depositions of
fact witnesses, and also extended expert disclosure deadlines. The Court reiterated
that a failure to adhere to the latest schedule may result in the imposition of sanctions,
“up to and including the dismissal of this lawsuit.” (Doc. 170 at 4, PageID 1912).
On July 20, 2016, Judge Beckwith denied and overruled several additional
motions and objections filed by Plaintiff. Several pages of the July 20, 2016 Order are
devoted to restating prior admonitions made to Plaintiff that this Court cannot provide
her or any other pro se litigant with legal advice, and setting out a detailed record of
“Plaintiff’s unacceptable conduct.”
Among the conduct criticized by the Court was
Plaintiff’s propensity “to make the same arguments on the same issues” in multiple
motions, despite the Court’s adverse rulings, which the Court termed “vexatious and an
abuse of process.”
(Id. at PageID 1944). Many of the Court’s rulings on Plaintiff’s
motions made reference to the Court’s prior rulings on the same matters.
The July 2016 Order continued with this express warning to Plaintiff about filing
repetitive motions, objections, and motions to reconsider the same rulings:
This Court adheres to a two step process when considering the imposition
of sanctions for litigant misconduct. First, the non-compliant litigant is
advised that vexatious, abusive and disrespectful conduct will no longer
be tolerated and that continued conduct of this nature will result in
sanctions up to and including dismissal of the remaining claims with
prejudice. See Case: 1:13-cv-00624-MRB-SKB Doc #: 175 Filed: 07/20/16
Gueye v. U.C. Health, et al., 1:13-cv-00673, Doc. No.44, (Beckwith,
S.D.Ohio, Sept. 2, 2014). Second, the non-compliant litigant is advised
that if the conduct continues beyond that warning, then the Court will order
a show cause hearing to give the litigant an opportunity to answer as to
why the Court should not impose the sanctions it deems appropriate. Id.
Ms. Andwan has been warned directly on many occasions that her
conduct will not continue to be tolerated. She has not heeded these prior
warnings…. Plaintiff is further advised that if any subsequent pleadings or
“objections” are reconfigurations of prior pleadings, reiterations of
previously ruled upon issues, or Plaintiff’s irrelevant personal commentary,
said conduct will be deemed to be vexatious and frivolous with no basis in
law. The next action from the Court in response to such conduct will be to
order a show cause hearing for the Plaintiff to show cause as to why she
should not be sanctioned.
(Doc. 175 at 5-6, PageID 1945-1946, emphasis added).
On August 24, 2016, the undersigned directed the parties to proceed with
scheduling Plaintiff’s independent medical examination and deposition.
scheduling (and rescheduling) accommodations were provided to Plaintiff regarding
these events, including breaking her deposition into shorter segments of time over
multiple days rather than a single day.
On September 20, 2016, Plaintiff filed a “motion to appoint competent cocounsel” to “assist Plaintiff throughout the remainder of this case.” (Doc. 180). On
September 29, 2016, the undersigned denied that motion, which was grounded in part
on Plaintiff’s assertions that she suffers from PTSD and an anxiety disorder, and is 69
years of age. Plaintiff also cited her alleged financial inability to spend additional money
on attorney’s fees, and the alleged reluctance of private attorneys she has consulted to
accept representation. Notwithstanding the Court’s prior instructions not to refile new
motions concerning previously decided issues, Plaintiff’s motion reiterated many prior
arguments concerning the alleged misconduct of prior counsel, Plaintiff’s continuing
objections and arguments relating to Defendants’ discovery responses, and the
inadequacy of pro se litigation resources provided by this Court. In denying Plaintiff’s
motion seeking the appointment of counsel or “co-counsel,” the undersigned wrote:
As Plaintiff is well aware, 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 undersigned has considered
all factors in this case, including the fact that Plaintiff previously retained
counsel on two separate occasions prior to their withdrawal based on
irreconcilable differences, and the fact that Plaintiff has been acting in a
pro se capacity for most of the time in which this case has been pending.
During the time in which Plaintiff has proceeded pro se, she has filed
dozens of motions and other documents in this Court, and represented
herself in numerous in person and telephonic status conferences.
The Court agrees that Plaintiff would benefit from the representation of
counsel - a statement that the undersigned could make about virtually
every pro se litigant. However, the benefit to Plaintiff or even to this Court
does not justify the appointment of counsel in a case where notwithstanding errors or missteps along the way - Plaintiff has
successfully represented herself for more than two years. Even if the
Court found exceptional circumstances, which do not exist in this case, the
Court has no authority to appoint counsel to serve as "co-counsel" with a
pro se litigant. To reiterate, no "exceptional circumstances" exist that
would justify the rare appointment of free counsel or co-counsel to Plaintiff
herein. Lavada v. Keohane, 992 F.2d 601 , 605-606 (6th Cir. 1993).
(Doc. 183). Consistent with anticipatory concerns expressed by the undersigned in the
September 29, 2016 Order, Plaintiff promptly filed a “motion to stay” her deposition as
well as other proceedings, until the Court appointed her counsel. On November 15,
2016, the undersigned denied Plaintiff’s motion to stay all proceedings in order to allow
“newly assigned co-counsel” to participate, reiterating that no counsel would be
appointed. (Doc. 186).
Plaintiff filed objections to the denial of counsel. Judge Beckwith overruled those
objections, finding no “exceptional circumstances” to justify the appointment of counsel.
(Doc. 187). In addition, Judge Beckwith’s Order states: “Plaintiff is advised to move
this case forward, adhere to the deposition and IME dates and discovery deadlines as
established by the magistrate judge previously. Plaintiff is further advised to review Doc.
No. 175, wherein this Court advised Plaintiff that further unsupported delays will not be
tolerated and could result in a show cause order in accordance with Fed. R. Civ. P.
11(c)(1).” (Doc. 187, Order of 11/22/16 at 2, emphasis added).
Plaintiff filed a “motion for reconsideration” of Judge Beckwith’s November 22,
2016 Order “and [for] leniency,” (Doc. 189), in which she reiterated her request for the
appointment of “co-counsel” and sought an additional continuance to conduct further
discovery. As grounds for reconsideration, Plaintiff renewed her criticisms of her prior
attorney, of this Court, and of Defendants and their attorneys. Plaintiff also questioned
whether the Court was unfairly treating her based upon Plaintiff’s asserted “PTSD
disability.” Judge Beckwith’s December 7, 2016 Order is clear in denial of the motion to
Plaintiff’s Motion does not reveal any circumstances that are
extraordinary, exceptional, or any different from previous similar motions.
Therefore, for all the reasons set forth in the previous orders of this Court,
including those of the Magistrate Judge, which have detailed the
obligations of the Court to pro se litigants and which have advised Plaintiff
that further delays and requests for continuances will not be tolerated, the
Court finds that Plaintiff’s Motion is not well taken.
This case was reassigned to U.S. District Judge Barrett on January 3, 2017.
Perhaps in the mistaken belief that the reassignment of her case to a new trial judge
may result in different rulings, 3 Plaintiff filed a “second motion for reconsideration” of her
motion to appoint counsel (and prior Orders denying said motion), as well as for
reconsideration of the denial of her motion to stay (and objections thereto), and – last
but not least – reconsideration of the denial of her first order for reconsideration. (Doc.
193, seeking reconsideration of Docs 180, 185, 186, 189, 190).
In general, the doctrine of the “law of the case,” means that earlier rulings made in the same case
continue to apply, whether or not those rulings were made by a previously assigned judicial officer.
II. Analysis of Second Motion for Reconsideration of Prior Rulings
As grounds for this latest “motion for reconsideration” of issues previously
decided by this Court, Plaintiff cites her advanced age (now 70), her high legal
expenses to date, and her psychiatric diagnoses of PTSD and persistent depressive
disorder. Plaintiff asserts that her treating physicians have “expressed concern that the
Court [has] forced Plaintiff, despite medical impairments, to proceed without counsel.”
(Doc. 193 at 1).
Plaintiff additionally argues that “exceptional circumstances” exist because she
suffers from “diminished abnormal eyesight” and high cholesterol. (Id.)
she blames this Court for delays, and criticizes the Court with some of the same
language for which she was previously admonished. (See, e.g. Doc. 175; compare
Doc. 193 at 2-3). She recites as additional “exceptional circumstances” a few
allegations in her second amended complaint (as well as some allegations from a first
amended complaint that is no longer at issue in this litigation).
Plaintiff asserts that defense counsel “have indicated on the record ... that they
will not object to assignment of counsel and/or a stay for Plaintiff to conduct depositions
and prepare new counsel to proceed professionally” and that counsel agreed to so
notify this Court. (Doc. 193 at 2; PageID 2201). Judge Beckwith previously considered
the same representation when she denied Plaintiff’s December 2, 2016 motion for
Defense counsel has filed nothing to date indicating Defendants’ agreement to extend discovery to allow
new counsel to prepare and take depositions on Plaintiff’s behalf. However, the Defendants’ agreement
or disagreement would not alter the undersigned’s conclusion that the appointment of counsel by this
Court is not warranted, and that no additional stays of existing deadlines should be granted.
Attached to Plaintiff’s second motion for reconsideration is a December 9, 2016
letter from Dr. Patrick Swanson to Judge Beckwith, stating Plaintiff’s psychiatric
diagnoses and expressing a medical opinion “that Ms. Andwan’s psychiatric symptoms
are of such a severity that she is unable to execute the research, arrangement of
documents, and other actions required to represent herself in this current legal matter.”
(Doc. 193-1,193-2). Plaintiff also has attached unverified 2012 medical records that
appear to support her claims of high cholesterol (in 2012) and vision complaints
(resulting in an initial prescription for bifocals in 2012, and a similar prescription in 2013)
The undersigned has no cause to doubt Plaintiff’s psychiatric or physical health
complaints. The Court also has no reason to doubt Dr. Swanson’s professional opinion
concerning the barriers to Plaintiff’s ability to represent herself in this matter given her
mental illness; the same issues have resulted in lenient extensions by this Court and
other accommodations, including permitting Plaintiff to be deposed over multiple days,
and to bring a “lay companion” to accompany her to a pretrial conference. The Court
has previously encouraged Plaintiff to retain new counsel if she is able, and in denying
Plaintiff’s motion in September 2016, the undersigned acknowledged “that Plaintiff
would benefit from the representation of counsel - a statement that the undersigned
could make about virtually every pro se litigant.” However, nothing previously presented
by Plaintiff and nothing presented in her latest procedurally improper and repetitive
second motion for reconsideration demonstrates the type of truly extraordinary
circumstances that would support the appointment of counsel in this case by this Court.
That said, the undersigned will make one final attempt to explain to Plaintiff why her
request is being denied.
Plaintiff is a civil litigant who willingly chose to initiate this litigation against the
Defendants. As this Court has repeatedly explained to Plaintiff, 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 appointment of counsel for
circumstances such as illiteracy, poverty, lack of legal knowledge, or illness.
Unfortunately, the Court’s civil case docket contains very large numbers of civil cases
filed by plaintiffs proceeding pro se who seek the Court’s appointment of counsel. While
many of these cases are initiated by prisoners, others are filed by individuals who, like
Plaintiff in this case, suffer from a variety of serious mental or physical illnesses.
One of the many reasons that this Court cannot appoint counsel to the vast
majority of pro se litigants who seek such appointments is that the Court does not have
either funds from which counsel can be compensated, or a ready list of attorneys who
are eager to take on such cases without compensation. Congress has provided limited
funding for the appointment of defense counsel only in criminal cases, in which the right
to counsel is secured by the Sixth Amendment of the United States Constitution. No
similar right to counsel exists for an individual who voluntarily initiates a civil suit for
money damages, no matter how meritorious a plaintiff may believe his or her claim to
be. A small number of federal statutes, including those relating to the representation of
social security claimants and some civil rights laws, provide for compensation of
attorney’s fees in civil cases – typically, at the conclusion of a case if a plaintiff’s
attorney has prevailed on the merits. Such attorney’s fee awards in civil rights cases
are paid by the Defendant(s). However, such cases are an exception to the American
rule that each side in litigation must bear his or her own litigation costs.
Plaintiff’s latest motion states: “Plaintiff is not seeking free representation.” (Doc.
193 at 1). The fact that Plaintiff does not proceed as a pauper in this case only adds to
the reasons why the appointment of counsel is not appropriate in this case. Plaintiff has
previously retained counsel on two separate occasions prior to their withdrawal and/or
termination by Plaintiff. Despite her current allegations of limited financial resources,
she not only retained counsel in the past but paid the full filing fee both in this Court and
for an interlocutory appeal to the Sixth Circuit. To the extent she claims indigency,
Plaintiff remains free to seek assistance through traditional agencies that serve the
indigent, including Legal Aid or Volunteer Lawyers for the Poor. Aside from those types
of services, many private attorneys will accept representation based upon contingency
fee agreements. Plaintiff’s poor prior history with retained counsel and apparent
continued lack of success in retaining new counsel calls into question the likelihood of
any future successful attorney-client relationship, 5 but this Court has not and will not
stand in the way of her continuing attempts to secure counsel on her own.
Contrary to Plaintiff’s apparent representation to her doctors, this Court has
never “forced” any pro se plaintiff to continue to prosecute her case if he or she no
longer wishes to do so.
Likewise, this Court has never prevented Plaintiff from
continuing to seek new counsel (independently of this Court) to represent her. The only
Given that more than 30 attorneys had turned down Plaintiff’s requests for representation in March 2014
(Doc. 18 at 3), the reports of prior counsel in their respective motions to withdraw, and the late stage of
litigation on this date, it frankly would be difficult to conceive of any counsel that this Court could appoint,
even if the Court were so inclined (which it is not).
limitation that this Court has ever placed upon Plaintiff is one of time. The Court was
more than generous in initially granting Plaintiff extensions of deadlines to seek new
counsel, but justice could not withstand endless extensions.
As the above history
reflects, the Court nevertheless granted Plaintiff additional extensions to accommodate
a variety of her concerns, including but not limited to her psychiatric treatment.
Plaintiff is not wholly incompetent. She has successfully filed pro se more than
60 motions, objections, and other documents of record. Despite numerous procedural
irregularities and missteps, Plaintiff’s pro se motions have been granted by this Court (at
least in part) on at least ten occasions. (See Docs. 21, 24, 63, 67, 68, 99, 133, 145, and
Notational orders of 11/3/14 and 10/1/15). The result of the many extensions granted in
this case is that, as of this date, this case has been pending for more than three years –
an excessively long time in comparison to similar cases.
The Court has been extremely lenient and liberal with Plaintiff despite her
continued disrespectful conduct toward this Court and opposing counsel, and despite
her continual filing of “new and improved” versions of repetitive arguments and motions,
including the instant second motion for reconsideration. (See Doc. 175). Plaintiff was
repeatedly warned by Judge Beckwith that her propensity to continue filing such
repetitive motions is vexatious and amounts to an abuse of process. The undersigned
agrees, having expended an inordinate amount of time upon many of these repetitive
The instant “second motion for reconsideration” is a case in point, and easily
would support the issuance of a “show cause” order and/or the imposition of sanctions.
The Court declines to enter such an order based upon the historic leniency of this Court
toward pro se litigants in general and Ms. Andwan in particular, in combination with the
particular nature of the pending motion, the recent transfer of this case to a new
presiding district court judge, and the additional evidence attached by Ms. Andwan to
the motion (Dr. Swanson’s letter). Should Plaintiff persist and file any additional motions
seeking reconsideration of the same issues, however, the undersigned will feel no
compulsion for future leniency.
III. Conclusion and Order
For all the reasons stated herein and in the Court’s prior orders regarding the
same issue, IT IS ORDERED THAT:
1. Plaintiff’s second motion for reconsideration of the Court’s prior orders denying
her the appointment of counsel and/or additional stays of this litigation (Doc. 193) is
2. A courtesy copy of this Order shall be transmitted to Dr. Patrick Swanson at
Talbert House, 5837 Hamilton Ave., Cincinnati, OH 45224.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
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