McCort v. Muskingum County et al

Filing 54

REPORT AND RECOMMENDATION and ORDER: Magistrate Judge RECOMMENDS denying as premature 51 Motion for Leave to Appeal in forma pauperis, RECOMMENDS denying as moot 52 for Stay of Judgment and the Proceedings and to Issue an Injunction Pending Appea l. Response to 34 Motion for Summary Judgment due within 30 days. Objections to R&R due by 8/30/2018. Signed by Magistrate Judge Kimberly A. Jolson on 8/16/2018. (ew)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEANO MCCORT,
Plaintiff,
v.

Civil Action 2:17-cv-620
Judge George C. Smith
Magistrate Judge Jolson

MUSKINGUM COUNTY, et al.,
Defendants.
REPORT AND RECOMMENDATION
AND ORDER
On August 8, 2018, Plaintiff filed a Motion for Leave to Appeal in forma pauperis (Doc.
51) and a Motion for a Stay of Judgment and the Proceedings and to Issue an Injunction Pending
Appeal (Doc. 52). Specifically, Plaintiff seeks leave to appeal the District Judge’s July 16, 2018
Opinion to the extent that “it held that Plaintiff has no right to counsel in prisoner civil rights
cases.” (Doc. 52 at 1). Plaintiff thus seems to focus on following portion of the District Judge’s
decision:
Plaintiff argues that he stated he did not want to proceed with his deposition until
he had the opportunity to retain counsel. The Magistrate Judge correctly noted that
Plaintiff has no right to counsel in prisoner civil rights cases. Further, Plaintiff
initiated this action and if he wanted to retain counsel, he could have done so any
time prior to and during the pendency of the litigation.
(Doc. 47 at 2). Plaintiff argues that the District Court erred in denying his right to counsel because,
even if he is not entitled to appointed counsel, he had a right to retain counsel. (Doc. 52 at 5)
(“McCort will present a compelling argument that the district court erred in finding that prisoner

civil rights cases have no right whatsoever to counsel.”).
Plaintiff misunderstands the Court’s ruling. As an initial matter, the District Judge properly
observed that, in civil rights cases, prisoners have no constitutional right to appointed counsel. In
contrast, the District Judge noted that Plaintiff has and maintains the right to retain counsel, but
he has opted not to do so. (Doc. 47 at 2). Finally, simply because Plaintiff did not have counsel
at the time of his deposition does not prevent Defendants from using Plaintiff’s testimony in
support of their Motion for Summary Judgment.
Here, Plaintiff seeks leave to appeal the District Judge’s ruling, despite the fact that the
litigation is ongoing. In other words, the Court has yet to issue a final judgment in this case. For
that reason, Petitioner’s request for an appeal is premature. See, e.g., Trimble v. Bobby, No. 5:10–
CV–00149, 2011 WL 1982919, at *1 (N.D. Ohio May 20, 2011) (“Litigants are generally not
entitled to appellate review of court orders prior to a final judgment on the merits.”). Although
the Court of Appeals may permit an interlocutory appeal in certain limited circumstances, none of
those circumstances are present in this case. See 28 U.S.C. § 1292(b) (providing that where an
order involves a “controlling question of law as to which there is substantial ground for difference
of opinion” and “an immediate appeal from the order may materially advance the ultimate
termination of the litigation,” an interlocutory appeal may be permitted); see also In re Memphis,
298 F.3d 345, 350 (6th Cir. 2002) (noting that “[r]eview under § 1292(b) is granted sparingly and
only in exceptional cases.”).
Based on the foregoing, it is RECOMMENDED that Petitioner’s Motion for Leave to
Appeal be DENIED as premature. (Doc. 51). It is likewise RECOMMENDED that Plaintiff’s
Motion for a Stay of Judgment and the Proceedings and to Issue an Injunction Pending Appeal be
DENIED as MOOT. (Doc. 52). Plaintiff is ORDERED to file his opposition to the pending

Motion for Summary Judgment (Doc. 34) no later than thirty days after the issuance of this Report
and Recommendation and Order. Finally, if Defendants’ Motion for Summary Judgment is denied
as to any of Plaintiff’s claims, this Court will consider a motion for appointment of counsel should
Plaintiff opt to file one. See Henry v. City of Detroit Manpower Dep’t, 763 F.2d 757, 760 (6th Cir.
1985) (en banc) (“[I]n considering an application for appointment of counsel, district courts should
consider plaintiff’s financial resources, the efforts of plaintiff to obtain counsel, and whether
plaintiff’s claim appears to have any merit.”).
Procedure on Objections to Report and Recommendation
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A Judge of this Court shall make a de novo determination of those
portions of the Report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may recommit
this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Procedure on Objections to Order
Any party may, within fourteen days after this Order is filed, file and serve on the opposing
party a motion for reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed.
R. Civ. P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate
the order or part in question and the basis for any objection. Responses to objections are due
fourteen days after objections are filed and replies by the objecting party are due seven days
thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this
Order found to be clearly erroneous or contrary to law.
This Order is in full force and effect, notwithstanding the filing of any objections, unless
stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.
IT IS SO ORDERED.

Date: August 16, 2018

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE