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Ketchum v. Khan

United States District Court, E.D. Michigan, Northern Division

November 1, 2016

RANDY KHAN, et al., Defendants.


          THOMAS L. LUDINGTON, United States District Judge.

         As articulated in the Court's August 4, 2016, order, this case concerns an allegation by Plaintiff David Ketchum that he was improperly treated during an arrest by Michigan State Police Troopers. Ketchum is asserting an excessive force claim pursuant to 42 U.S.C. § 1983. Ketchum began by proceeding pro se, but the Court appointed counsel for him on June 22, 2015. ECF No. 58. Ketchum and his appointed counsel soon began having difficulties. The relationship between Ketchum and his appointed counsel, the firm Pepper Hamilton, has greatly deteriorated. Accordingly, Pepper Hamilton's renewed motion to withdraw as counsel will be granted.


         For clarity, the procedural history summarized in the Court's August 4, 2016, order will be repeated here. On February 27, 2014, Magistrate Judge Paul J. Komives issued a Report recommending that the motion for summary judgment filed by Defendants Werda, Welton, McMillan, and Khan be granted in part and denied in part. See Rep. & Rec., ECF No. 43. Judge Komives further recommended that all claims against Defendants be dismissed except for Plaintiff Ketchum's excessive force claim. Id. at 22. Judge Komives also recommended dismissing Defendant Werda in his entirety. Id. The Court adopted Judge Komives Report and overruled the parties' objections to it. See July 18, 2014 Op. & Order, ECF No. 50.

         After ruling on the parties' motions for summary judgment, all that remained was a triable issue concerning Ketchum's excessive use of force claim. Judge Komives had previously instructed Ketchum, in response to a motion for appointment of counsel, that if Ketchum's case “survives dispositive motion practice and proceeds to trial” Ketchum could renew his request for counsel. See January 14, 2014 Order, ECF No. 41. Following the Court's July 18, 2014 Opinion and Order, Ketchum renewed his request for counsel. See Pl.'s Mot. to Renew Mot. to Appoint Counsel, ECF No. 51. Judge Komives conditionally granted Ketchum's renewed motion and referred the matter to the Court's pro bono program administrator. See September 4, 2014 Order, ECF No. 52. Ketchum's motion was granted on the condition that an attorney in the Court's pro bono program would accept appointment as his counsel. Id.

         The task of locating willing counsel for Ketchum took significant time. While counsel was being sought, Ketchum filed a motion renewing his request for counsel and requesting other forms of relief, such as certain discovery and the reinstatement of dismissed Defendants. See Pl.'s Mot. for Disc. & Appoint. of Counsel, ECF No. 55. Also while counsel was being sought, this case was reassigned from Judge Komives to Magistrate Judge Patti. See January 13, 2015 Text Order. Judge Patti denied Ketchum's motion. See May 15, 2015 Order, ECF No. 56. Judge Patti also struck two letters that Ketchum filed on the docket. See May 15, 2015 Order, ECF No. 57.

         Eventually, willing counsel was located and Attorneys Matthew J. Lund and Brett Gelbord from the firm Pepper Hamilton, LLP, were appointed to represent Ketchum. See June 22, 2015 Order of Assignment of Counsel, ECF No. 58. After appointing counsel, the Court scheduled a telephonic status conference with counsel for both parties. The parties agreed to reset the scheduling order in this matter, which included reopening discovery and allowing the parties another opportunity to file dispositive motions. A new case management and scheduling order was issued on July 31, 2015. See Case Management and Scheduling Order, ECF No. 60.

         On October 6, 2015, Kay Kress, a corporate restructuring and bankruptcy partner at Pepper Hamilton, made an appearance on the docket on behalf of Ketchum. See Not. of Appearance, ECF No. 61. Then, on September 10, 2015, Ketchum, acting pro se, filed a “motion to prevent co-counsel Kay Kress from assisting in this case.” See Pl.'s Mot., ECF No. 64. Ketchum claimed in his motion that he “does not agree with the interpretation of Ms. Kress's understanding of the representation agreement or ‘Terms of Engagement.'” Id. He took issue with the fact that “[t]he terms of engagement is placed in vauge terms, in respects to appeals being filed on arbitrary or otherwise wrongful denials to motions and pleading's while the case is active.” Id. (sic throughout). Further, he felt that “Ms. Kress has displayed a lack of zealousness in her ambition to represent” him and that he has “lost faith in Ms. Kress's ability to provide adequate representation.” Id. This is in part, he explained, because Attorney Kress “has provided ill advise [sic] on particular matters concerning motions and appeals thereof.” Id. Finally, Ketchum observed that “Ms. Kress was not named on the Court's order appointing counsel.” Id.

         After Ketchum filed his motion, Judge Patti directed counsel for Ketchum to respond to his contentions and “explain[] Attorney Kay Kress's role and prospective role in this matter.” September 18, 2015 Order, ECF No. 65. Judge Patti directed counsel for Ketchum to respond by October 2, 2015. Id. Judge Patti also directed Ketchum himself to respond after having an opportunity to review his counsel's explanation for Attorney Kress's involvement in the case. Judge Patti directed Ketchum to file a brief “inform[ing] the Court whether his position on this issue has changed or be modfied [sic], and if not, why not; if so, why so.” Id. Ketchum was to respond by October 16, 2015.

         Ketchum's counsel timely filed their response. See Resp., ECF No. 67. In conjunction with that response, they filed a motion to withdraw as counsel for Ketchum. See Mot. Withdraw, ECF No. 66. Ketchum's counsel explained in their response and motion that Attorney Kress was assisting the appointed attorneys from Pepper Hamilton in “prosecuting plaintiff's claims, in communicating with the client, in initiating discovery, and in taking other action necessary to comply with the Court's Case Management and Scheduling Order.” Id. at 6. They further explained that “Pepper Hamilton operates as a firm, and it views the firm as counsel to its clients.” Id. at 7. Thus, it is standard practice for the firm to have non-appointed attorneys appear in and work on cases where other attorneys at the firm have been appointed. Attorney Kress was operating in such a role.

         On August 4, 2016, the Court issued an order denying Ketchum's motion to prevent Attorney Kress from assisting in the case and denying Pepper Hamilton's motion to withdraw. ECF No. 77. The Court encouraged the parties to “make another effort at cooperation.” Id. at 4. The Court further advised Ketchum that, if it became necessary to remove Pepper Hamilton, Ketchum would “return to pro se status” and, because “the case was trial-ready the last time Ketchum was pro so, ” it would be reset for trial. Id. at 5.

         On October 7, 2016, Pepper Hamilton filed a renewed motion to withdraw as counsel. ECF No. 83. Pepper Hamilton asserted that it had made reasonable efforts to reestablish a positive working relationship with Ketchum. However, relations have once again deteriorated. Id. at 2. Pro se plaintiffs do not have a constitutional right to counsel. Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993). Rather, appointment of counsel in civil cases is a privilege “that is justified only by exceptional circumstances.” Id. at 606. Given Ketchum's refusal to cooperate with appointed counsel that the Court expended considerable time and effort in procuring, the Court will grant Pepper Hamilton's renewed motion to withdraw. Further, as mentioned in the Court's August 4, 2016, order, Ketchum will now return to pro se status, “absent extraordinary circumstances.” ECF No. 77 at 5. No extraordinary circumstances having been shown, the case is trial ready. To expedite resolution of Ketchum's suit, the trial will be rescheduled.


         Because Ketchum will be representing himself in a federal court civil action while incarcerated in state prison, [1] a new issue arises. Does Ketchum have a right to be personally present at his civil trial? If so, does this Court have the legal authority to compel the State of Michigan to temporarily ...

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