Bates v. Ohio Department of Rehabilitation and Corrections et al

Filing 69

MEMORANDUM OPINION AND ORDER (filed in Case No. 1:22-cv-488) signed by Magistrate Judge Stephanie K. Bowman on 6/3/2024.IT IS ORDERED THAT: 1. Plaintiff's motion seeking participation in a Court-facilitated mediation (Doc. 46) is GRANTE D; 2. Defendants' motion for a 60-day stay of the date of Court-facilitated mediation (Doc. 48) is DENIED AS MOOT; 3. Plaintiff's motion seeking the appointment of counsel in this case (Doc. 50) is GRANTED; 4. Attorney Ben Whi te is hereby appointed for the limited purpose of representing Plaintiff in the above-captioned case and in Case Nos. 1:22-cv-337-DRC-KLL and 1:23-cv-16-JPH-KLL at a Court-facilitated mediation to be set forthwith.5. Should the referenced mediat ion not result in settlement of the above captioned case, and if trial is necessary, Attorney White shall continue to represent Plaintiff in the above-captioned case;6. Courtesy copies of this Order shall be filed in Case Nos. 1:22-cv-337-DRC-KLL and 1:23-cv-16-JPH-KLL. (eh)(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
WESTERN DIVISION
ROBERT BATES,

Case No. 1:22-cv-488

Plaintiff,
McFarland, J.
Bowman, M.J.

vs
STEPHEN HALE, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
This pro se prisoner civil rights case was recently referred back to the undersigned
to consider the appointment of counsel for both a court-facilitated mediation, and (if
necessary) for a jury trial before U.S. District Judge McFarland.
I.

Background

Pursuant to local practice, this case was referred to the undersigned magistrate
judge for initial consideration. In his complaint, Plaintiff sought to hold eight individuals
liable for alleged violations of the Eighth Amendment that occurred on May 8, 2021. After
initial screening, Plaintiff was permitted to proceed with claims based on two related
incidents. In the first, a conditions-of-confinement claim, Plaintiff alleged that two
Corrections Officers (Murray and Davis) sprayed a bottle of urine on his bed and floor. In
the second, Plaintiff alleged that Defendants Kinner, Hale, Wasmer, Justice, and Wellman
used excessive force against him in the infirmary while Nurse Sammons watched and
failed to intervene.
On November 7, 2023, the undersigned filed a Report and Recommendation
(“R&R”) that ruled on the parties’ cross-motions for summary judgment. In that R&R, the

Court denied Plaintiff’s motion and partially granted Defendants’ motion as to the
conditions-of-confinement claim against Defendants Murray and Davis. But the Court
denied summary judgment to five Defendants on the excessive force claim, reasoning
that “a reasonable jury could conclude that five Defendants violated Plaintiff’s Eighth
Amendment rights through the excessive use of force in the infirmary, and that Defendant
Sammons violated his rights by failing to intervene.” (Doc. 44). On January 8, 2024, the
presiding district judge adopted that R&R for the opinion of the Court. (Doc. 47).
Currently pending are: (1) Plaintiff’s motion for an order to permit the parties to
participate in the Court’s pro se mediation program; (2) Defendants’ motion to stay the
case for 60 days while they attempted to reach a global resolution of this matter and two
other cases (Nos. 1:22-cv-337-DRC-KLL and 1:23-cv-16-JPH-KLL)1 without the
assistance of this Court; and (3) Plaintiff’s motion for the appointment of counsel. (See
Docs. 46, 48, 50).
II.

Analysis

Defendants’ motion for a 60-day stay was filed on March 15, 2024. At this juncture,
more than 60 days have elapsed in which the Defendants have sought to achieve a global
settlement without success. Therefore, the Court will appoint counsel, Attorney Ben
White, for the limited purpose of representing Plaintiff at a Court-facilitated mediation to
be set in the near future by separate Order.
If the parties are unable to reach resolution of their dispute through the Courtfacilitated mediation, and if a jury trial is necessary in the above-captioned case, Mr. White

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Discovery has closed and no motions are currently pending in either case of the cases referred to
Magistrate Judge Litkovitz. In both cases, the parties recently indicated their mutual intent to resolve all
three cases during Court-facilitated mediation if possible. To permit time for that to happen, Magistrate
Judge Litkovitz has stayed both cases.

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has agreed to consider additional representation of Plaintiff at trial in this case. “The
appointment of counsel to civil litigants is a decision left to the sound discretion of the
district court." Reneer v. Sewell, 975 F.2d 258, 261 (6th Cir. 1992). Ordinarily, this Court
does not appoint counsel in the absence of exceptional circumstances. Here, however,
in part because a limited number of Plaintiff’s claims in this case have survived summary
judgment, “enough exceptional circumstances” exist to warrant such appointment. See
Harrison v. Diamond Pharm. Servs., No. 4:21-cv-63-BJB, ___ F. Supp.3d ___, 2023 U.S.
Dist. LEXIS 223598, *9. (W.D. Ky. Dec. 15, 2023). The initial appointment of counsel for
Plaintiff for the purpose of mediation will not only be a service to the indigent Plaintiff, but
also will benefit the Court mediator and potentially the defendants as well. Id.
III.

Conclusion and Order

For the reasons stated, IT IS ORDERED THAT:
1. Plaintiff’s motion seeking participation in a Court-facilitated mediation (Doc. 46)
is GRANTED;
2. Defendants’ motion for a 60-day stay of the date of Court-facilitated mediation
(Doc. 48) is DENIED AS MOOT;
3. Plaintiff’s motion seeking the appointment of counsel in this case (Doc. 50) is
GRANTED;
4. Attorney Ben White is hereby appointed for the limited purpose of representing
Plaintiff in the above-captioned case and in Case Nos. 1:22-cv-337-DRC-KLL
and 1:23-cv-16-JPH-KLL at a Court-facilitated mediation to be set forthwith;

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5. Should the referenced mediation not result in settlement of the abovecaptioned case, and if trial is necessary, Attorney White shall continue to
represent Plaintiff in the above-captioned case;
6. Courtesy copies of this Order shall be filed in Case Nos. 1:22-cv-337-DRC-KLL
and 1:23-cv-16-JPH-KLL.

_s/Stephanie K. Bowman ____
Stephanie K. Bowman
United States Magistrate Judge

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