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Burley v. Williams-Ward

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

September 5, 2019

EDWARD DONALD BURLEY, Plaintiff
v.
MICHELLE WILLIAMS-WARD, RANDALL HAAS, GEORGE STEPHENSON, REGINA JENKINS-GRANT, CARYLON WILLIAMS, et al., Defendants.

          Avern Cohn District Judge

          ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL (DE 50) AND SETTING DEADLINE FOR PLAINTIFF'S RESPONSE TO THE MOTION TO DISMISS (DE 51)

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

         A. Background

         Edward Donald Burley is currently incarcerated at the Michigan Department of Corrections (MDOC) Oaks Correctional Facility (ECF).[1] On July 17, 2018, while incarcerated at Parnall Correctional Facility (SMT), Plaintiff Burley filed the instant lawsuit against several Macomb Correctional Facility (MRF) defendants. (DE 1; see also DE 33.) Plaintiff is proceeding in forma pauperis. (DE 6.)

         Judge Cohn referred this case to me for all pretrial matters. On July 1, 2019, Judge Cohn entered an order adopting my report and recommendation (DE 38), denying Defendant's motion for partial summary judgment (DE 23), and denying Plaintiff's motion for bench trial on exhaustion (DE 26). (DE 44.) In addition, the order provided that “Burley may within twenty (20) days file an amended complaint which contains more definite statements of the claims asserted against each defendant . . . .” (DE 44 at 4.)

         B. Amended Complaint

         On July 24, 2019, the Court entered an order, which, inter alia: (1) permitted Plaintiff until Thursday, August 22, 2019 by which to file an amended complaint without leave; and, (2) provided that discovery is to be completed by Monday, February 24, 2020, and dispositive motions are due Tuesday, March 24, 2020. (DE 47 at 2-3.)

         On August 12, 2019, Plaintiff filed an amended complaint against named Defendants Michelle Williams-Ward, Randall Haas, George Stephenson, Regina Jenkins-Grant, and Carylon Williams. (DE 49 at 1, 3-5; see also DE 16.)[2] The alleged facts underlying Plaintiff's complaint begin with his March 26, 2015 arrival at MRF and continue through a June 12, 2015 refusal to process his legal mail. (DE 49 ¶¶ 16-25.) Plaintiff's claims for relief are based upon (1) First Amendment access to courts; (2) First Amendment retaliation; and, (3) Fourteenth Amendment equal protection. (DE 49 ¶¶ 26-54.) Among Plaintiff's requests for relief are referral to the Pro Se Early Mediation Program, as well as awards of compensatory and punitive damages. (DE 49 at 19-20.)

         C. Pending Motions

         Currently before the Court is Plaintiff's August 12, 2019 motion for appointment of counsel. (DE 50.) In support of his motion, Plaintiff contends, inter alia, that he is “severely hearing impaired . . . [, ]” “confined to a protection cell for 23 hours a day, ” “unable to adequately utilize the law library as the Protection Unit only has a ‘mini-library[, ]'” “severely indigent, ” and “unable to conduct a deposition or bear his burden for discovery.” (Id. at 1-3.) He anticipates a “very challenging” litigation process and contends that his protective custody and hearing impairment “drastically impact[] [his] ability to research and gather meaningful evidence for trial.” (Id. at 2, 5.) In Plaintiff's view, Defendants “will be less prone to improperly represent the case i[f] an attorney is appointed.” (Id. at 4.)

         D. Standard

         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.”). The appointment of counsel in a civil case, therefore, “is a privilege not a right.” Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987) (internal quotation omitted).

         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) (citations omitted).[3] 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. ...


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