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Johnson v. Shelter

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

December 26, 2017

WESTLEY JOHNSON, Plaintiff,
v.
COMMON GROUND SHELTER, TORRE SANCHEZ, GARY THOMAS, KAYANA SESSIONS, BARBARA BROESAMIE, and JOHN DOES, Defendants.

          District Judge George Caram Steeh

          ORDER REGARDING PLAINTIFF'S DECEMBER 5, 2017 MOTIONS (DEs 23, 24, 25) AND DECEMBER 20, 2017 LETTER (DE 27)

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

         Plaintiff Westley Johnson, a state inmate who is proceeding in forma pauperis and without the assistance of counsel, filed his complaint on April 11, 2017, asserting claims under 18 U.S.C. § 2255 of the Child Abuse Victims' Rights Act of 1986. Plaintiff brings his claims against several named Defendants (Common Ground Shelter, Torre Sanchez, Gary Thomas, Kayana Sessoms and Barbara Broesamie), as well as “other unknown / unnamed Common Ground staff.” (DE 1.)

         Judge Steeh has referred this case to me for pretrial matters. Currently before the Court are several matters, each of which the Court will address individually.

         I. REQUEST FOR DOCUMENTS FROM THE COURT DOCKET (DE 23)

         First, Plaintiff has filed a motion for this Court “to provide [him] with all documents filed in this lawsuit.” (DE 23.) He claims that prison staff lost all of his legal property in November 2017 during his transition from Unit 1 to Unit 4 at the Oaks Correctional Facility and specifically requests copies of docket entries 1 through 19. Plaintiff's motion is DENIED as presented. The Undersigned has contacted the Clerk's Office, which will send Plaintiff a copy of the docket report for this case. Plaintiff will be asked to indicate the items he seeks to have copied.

         The Clerk's Office will then invoice Plaintiff at a rate of .50 cents per page plus a $31.00 search fee. Once payment is received, the Clerk's Office will execute Plaintiff's request.

         II. REQUEST FOR DISCOVERY (DE 24)

         Second, Plaintiff has filed a motion to “begin discovery, ” which is further titled, “Plaintiff's First Request for Production of Documents.” (DE 24.) Citing Fed.R.Civ.P. 34, Plaintiff sets forth six (6) numbered requests. Here, too, Plaintiff's motion is DENIED. The filing of discovery material is prohibited by Local Rule 26.2, except in limited circumstances which are not applicable here. If Plaintiff wishes to engage in discovery, he must serve his requests for the production of documents in accordance with Fed.R.Civ.P. 34. If the party to whom the requests are directed fails to answer in the time permitted by that rule, then Plaintiff may filed a motion to compel responses in accordance with Fed.R.Civ.P. 37, keeping in mind that any such motion should comport with E.D. Mich. LR 37.2 (“Form of Discovery Motions”).

         III. REQUEST FOR APPOINTMENT OF COUNSEL (DE 25)

         Third, Plaintiff has filed a second motion for “appointment of counsel.” (DE 25; see also DEs 7, 9.) Preliminarily, 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.”).

         The 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 Fed.Appx. 633, 635 (6th Cir. 2004).[1]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 exceptional situations.

         In 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 Fed.Appx. 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 Cir. 2003).

         Plaintiff argues that counsel should be granted (or more accurately, recruited) because: (1) his legal materials have gone missing since his move (as discussed above); (2) his ability to prosecute this case is “greatly limited” because he is a prisoner; (3) he is without access to an “actual” law library and is “only allowed to order 5 items at a time from the prison law library[;]” (4) he is “mentally disabled[;]” ...


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