United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL (DE
ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE
is currently in the custody of the Michigan Department of
Corrections (MDOC) at St. Louis Correctional Facility (SRF).
(DE 10.) On October 13, 2016, while housed at the MDOC's
Alger Correctional Facility (LMF), Plaintiff filed the
instant lawsuit, pro se, against six defendants:
(1-4) Jordan, Dominguez-Bem, Ploehn, and
Ouellette, each of Lakeland Correctional Facility (LCF);
(5) Abdellatif of Macomb Correctional
Facility (MRF) and (6) Borgerding, whose
location was not provided. (DE 1 ¶¶ 8-13; see
also DE 11, DE 17.)
these defendants has appeared. Defendants Dominguez-Bem,
Ouellette, and Ploehn (“Corizon Defendants”) and
State Defendant Borgerding have filed motions for summary
judgment. (DEs 43, 52.) Defendant Jordan has filed a motion
to dismiss. (DE 56.) Finally, although counsel has already
entered appearances on behalf of Defendant Abdellatif
(see DEs 11, 12, 15), the Court anticipates it will
receive a responsive pleading from this Defendant once the
Court rules upon the Corizon Defendants' currently
pending, procedurally-based motion for summary judgment.
(See June 20, 2017 text-only order.)
Motions for Appointment of Counsel
before the Court is Plaintiff's June 7, 2017 verified
motion for appointment of counsel. (DE 41.) As a preliminary
matter, the Court does not have the authority to appoint a
private attorney for Plaintiff in this civil matter.
Proceedings in forma pauperis are governed by 28
U.S.C. § 1915, which provides that “[t]he court
may request an attorney to
represent any person unable to afford counsel.” 28
U.S.C. § 1915(e)(1) (emphasis added). However, even if
the circumstances of Plaintiff's case convinced the Court
to engage in such a search, “[t]here is no right to
recruitment of counsel in federal civil litigation, but a
district court has discretion to recruit
counsel under 28 U.S.C. §
1915(e)(1).” Dewitt v. Corizon, Inc., 760 F.3d
654, 657 (7th Cir. 2014) (emphasis added); see also Olson
v. Morgan, 750 F.3d 708, 712 (7th Cir. 2014)
(“Congress hasn't provided lawyers for indigent
prisoners; instead it gave district courts discretion to ask
lawyers to volunteer their services in some cases.”).
Supreme Court has held that there is a presumption that
“an indigent litigant has a right to appointed counsel
only when, if he loses, he may be deprived of his physical
liberty.” Lassiter v. Dep't of Soc.
Servs., 452 U.S. 18, 26-27 (1981). With respect to
prisoner civil rights cases in particular, the Court of
Appeals for the Sixth Circuit has held that “there is
no right to counsel. . . . The appointment of counsel in a
civil proceeding is justified only by exceptional
circumstances.” Bennett v. Smith, 110 F.
App'x 633, 635 (6th Cir. 2004).Accordingly, although the
Court has the statutory authority to request counsel for
pro se plaintiffs in civil cases under 28 U.S.C.
§ 1915(e), the exercise of this authority is limited to
evaluating a matter for “exceptional circumstances,
” a court should consider: (1) the probable merit of
the claims, (2) the nature of the case, (3) the complexity of
the legal and factual issues raised, and (4) the ability of
the litigant to represent him or herself. Lince v.
Youngert, 136 F. App'x 779, 782 (6th Cir. 2005);
Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir.
1993); Lanier v. Bryant, 332 F.3d 999, 1006 (6th
argues that the factual complexity of his case, his ability
to investigate, the existence of conflicting testimony, his
ability to present his claims, the complexity of the legal
issues, and the merits of the case are factors that weigh in
his favor. (DE 41 at 7-9.) In particular, the Court
recognizes Plaintiff's assertions that he is
“unable to identify, locate, and interview” the
responsible medical providers, it will be legally complex to
determine “which defendants were personally involved .
. . [, ]” and his case has “survived initial
screening . . . [.]” (DE 41 ¶¶ 2, 5, 6);
however, such factors would apply to nearly every pro
se prisoner proceeding in forma pauperis, and
do not constitute extraordinary circumstances.
Plaintiff's arguments, the Court has been able to
understand the relief sought in the instant motion (DE 41),
and further notes that the Court granted the relief sought by
the application to proceed in forma pauperis (DEs 2,
5) and the motion for reconsideration (DEs 45, 59). Also, at
this time, the Court has no reason to believe it will be
unable to understand Plaintiff's other filings in this
matter, such as: his complaint (DE 1), the remaining portion
of his motion for injunctive relief (DE 3), his motion to
amend (DE 36), the simultaneously-filed proposed amended
complaint (DE 37), or his responses / sur-reply to the
pending dispositive motions (DE 50, 60, 62, 63). In short, he
appears to have the ability to represent himself,
commensurate with similarly situated pro se
plaintiffs. Finally, the pending motions for summary
judgment and the motion to dismiss, which will be addressed
under separate cover, are based in some cases upon procedural
or threshold-type issues, such as exhaustion, Eleventh
Amendment immunity, and statute of limitations. (See
DE 43 at 13-15, DE 52 at 9-22, DE 56 at 12-18). These are no
more factually or legally complex issues than in any other
prisoner civil rights case.
consideration, Plaintiff's motion for appointment of
counsel (DE 41) is DENIED WITHOUT PREJUDICE.
Plaintiff may renew his request if this case survives
dispositive motion practice or if ...