United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION FOR APPOINTMENT OF
L. LUDINGTON United States District Judge
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,
the firm Pepper Hamilton, soon began having difficulties.
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 se,
” 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. On November 1, 2016, the
Court granted that motion. Because the Court had previously
informed Ketchum that, if Pepper Hamilton was removed as
counsel, he would return to pro se status and trial would be
scheduled, the trial was reset for February 28, 2017.
December 9, 2016, Ketchum filed a motion for appointment of
counsel. ECF No. 88. In the motion, he argues that the Pepper
Hamilton attorneys colluded with the Court and with opposing
counsel against him. He specifically references his prior
counsel's refusal to “obtain the video
recording's [sic] that caught the defendant's
beating, choking, and torturing plaintiff.”
Id. at 4. He alleges that because his attorneys did
not timely seek the recordings, they were destroyed. He also
asserts that he is not legally sophisticated enough to
represent himself at trial.
motion will be denied. 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. Ketchum has consistently shown a refusal
to cooperate in good faith with his appointed attorneys.
Despite Ketchum's lack of legal experience, there are no
“exceptional circumstances” here which
necessitate reappointment of counsel, especially considering
Ketchum's past interactions with counsel.
extent Ketchum is arguing that the potential evidence
spoliation claim involving the video recordings necessitates
the appointment of counsel, that argument is unavailing.
Ketchum attaches to the motion a letter from his former
counsel which discusses their attempt to obtain the video
footage. Letter, ECF No. 88, Ex. A. Ketchum's attorney
explains that he sent a subpoena to the hospital seeking the
evidence. In response, the hospital explained that “the
only treatment areas in the emergency department with any
kind of camera is the psychiatric room, which has a video
feed that is not recorded . . . . Second and more
importantly, the hospital's entire video surveillance
system was replaced in 2001.” Id. Ketchum has
not provided any affirmative evidence of spoliation. The only
evidence he does present indicates that no recording was ever
made. Thus, this potential spoliation claim does not
necessitate appointment of counsel.
it is ORDERED that Ketchum's motion for appointment of