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Fuller v. Kerr

United States District Court, Eastern District of Michigan, Southern Division

March 31, 2015

THOMAS LEROY FULLER (#237590), Plaintiff,
v.
DAVID KERR, GARY DAVIS, JANET COCHRAN and JOHN HAWLEY, Defendants.

MATTHEW F. LEITMAN, JUDGE

ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S EX PARTE MOTION FOR THE APPOINTMENT OF COUNSEL (DE 49)

ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE

At the time Plaintiff Thomas Fuller (#237590) filed the instant lawsuit, he was incarcerated at the Michigan Department of Corrections (MDOC) Carson City Correctional Facility (DRF). See DE 1 at 1. While incarcerated at DRF, Plaintiff had the assistance of Emanuel S. Coates (#155262), who Plaintiff identifies as a paralegal and who is still incarcerated at DRF. See, i.e., DE 17 at 1, DE 26 at 1, DE 27 at 1, DE 32 at 1; www.michigan.gov/corrections, “Offender Search.” However, Plaintiff has been transferred from DRF and is currently incarcerated at the MDOC’s Marquette Branch Prison (MBP). DE 50.

At this time, there are six (6) motions pending before the Court. DE 20, DE 38, DE 47, DE 48, DE 49 and DE 52. Among these is Plaintiff’s verified January 9, 2015 ex parte motion for the appointment of counsel (DE 49), wherein Plaintiff informs the Court that “legal assistance is no longer available to Plaintiff because of his transfer.” DE 49 ¶ 2. Plaintiff further states:

Plaintiff takes psychotropic medications and legal assistance is necessary so that Plaintiff will be able to pursue this matter. Without any legal assistance, Plaintiff will not be able to litigate his claims or defend against the defendants motions and discovery tactics.

DE 49 ¶ 3.

Upon consideration, Plaintiff’s motion (DE 49) is denied without prejudice. The Court acknowledges Plaintiff’s claim that the instant motion “was prepared by the prisoner paralegal for Plaintiff right before his transfer.” DE 49 ¶ 4. However, looking to the matters Plaintiff has filed following his transfer, the Court concludes that Plaintiff’s request should be denied at this time. For example, Plaintiff’s February 12, 2015 motion (DE 52), apparently authored while Plaintiff was incarcerated at MBP, states that Plaintiff qualifies to receive assistance from the Legal Writer Program.[1] See DE 52 ¶¶ 13, 14. Also, Plaintiff’s March 11, 2015 motion (DE 53) to enlarge time to respond to the motion for summary judgment (DE 48) states:

Mr. Fuller’s Initial request for legal assistance for the Motion in Opposition was received by the MBP Library on February 22, 2015 after going through the prisoner kite system. After this an application for legal assistance was sent to the prisoner on or about the same date. After going back through the prisoner kite system both to and from prisoner; the plaintiff’s application for legal assistance notifying us of his March 9, 2015 deadline was ultimately received via interview between prisoner and legal writer on February 19, 2015.

DE 53 at 3 ¶ 3. Finally, on March 20, 2015, Plaintiff filed a response (DE 55)[2] to Defendants’ dispositive motion (DE 48). Thus, it appears that Plaintiff is receiving the same or similar type of help at MBP that he received from Mr. Coates at DRF. Moreover, even after his transfer to a new facility, Plaintiff has illustrated his ability to adequately communicate his requests to this Court in a reasonably clear and well-organized manner and with appropriate legal citation.

Accordingly, Plaintiff’s January 9, 2015 ex parte motion for the appointment of counsel (DE 49) is DENIED WITHOUT PREJUDICE. Plaintiff may petition the Court for the recruitment of pro bono counsel if this case survives dispositive motion practice, proceeds to trial or if other circumstances demonstrate such a need in the future.[3]

IT IS SO ORDERED.


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