United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL,
CANCELLING DATES, SCHEDULING TRIAL AND FOR
ISSUANCE OF WRIT OF HABEAS CORPUS AD TESTIFICANDUM
L. LUDINGTON, United States District Judge.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Ketchum will be representing himself in a federal court civil
action while incarcerated in state prison,  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