Opinion
Case No. 2:09-CV-961, Case No. 2:10-CV-347, Case No. 2:10-CV-951.
December 10, 2010
ORDER and REPORT AND RECOMMENDATION
These cases are brought pursuant to 42 U.S.C. § 1983. In 2:09-CV-961 and 2:10-CV-347, Plaintiffs Leonard and Worthington complain of exposure to asbestos and mold while incarcerated in the Chillicothe Correctional Institution; in 2:10-CV-951, Plaintiff Leonard complains that he has been retaliated against because of his pursuit of the other two actions. All three cases are assigned to the same judicial officers. Under these circumstances, the unopposed motions to consolidate, Doc. No. 46 in 2:09-CV-961 and Doc. No. 4 in 2:10-CV-347, are GRANTED.
On November 18, 2010, Plaintiff Leonard filed a Motion for Default Judgment, claiming that Defendants Knab and Collins "have failed to timely or otherwise ever file an Answer" in 2:09-CV-961. Motion for Default Judgment, Doc. No. 48 in 2:09-CV-961, at 1. Plaintiff Leonard is mistaken; Defendants did in fact file an Answer in 2:09-CV-961 on December 22, 2009. Doc. No. 16. Thus, it is RECOMMENDED that Plaintiff's Motion for Default Judgment, Doc. No. 48 in 2:09-CV-961 be DENIED.
On November 18, 2010, Plaintiff Leonard also filed a Motion for Appointment of Counsel/Motion for Injunctive Relief and Motion to Amend Case 2:10-CV-951. Doc. No. 47 in 2:09-CV-961; Doc. No. 8 in 2:10-CV-347; and Doc. No. 12 in 2:10-CV-951.
Plaintiff Leonard seeks to amend 2:10-CV-951 in order to assert in that action the Eighth Amendment claims asserted in 2:09-CV-961 and 2:10-CV-347. It is not apparent to the Court why Plaintiff Leonard wishes to duplicate his claims in these cases. The plethora of filings by Plaintiffs have not advanced the litigation but have merely caused confusion. Under these circumstances, Plaintiff Leonard's request to amend 2:10-CV-951 in order to assert the claims already asserted in 2:09-CV-961 and 2:10-CV-347 is DENIED.
Plaintiff Leonard's motion in the three cases also seeks interim injunctive relief and the appointment of counsel. Defendants filed a Motion to Strike the request for injunctive relief because the motion does not include co-Plaintiff Cole Worthington's signature. Doc. No. 49 in 2:09-CV-961. However, it is apparent that the request for injunctive relief applies only to Plaintiff Leonard's assignment to segregation; no claim is asserted by or on behalf of Plaintiff Worthington. Under these circumstances, Defendants' Motion to Strike, Doc. No. 49 in 2:09-CV-961, is DENIED.
Because Plaintiff Leonard's motion for interim injunctive relief is not yet fully briefed, that motion will remain pending in 2:10-CV-951.
Finally, Plaintiff Leonard requests the appointment of counsel "in order to properly present these cases of which he is entitled to damages [ sic] and in light of his situation in `solitary confinement'. . . ." Doc. No. 47 in 2:09-CV-961, at 5; Doc. No. 8 in 2:10-CV-347, at 5; and Doc. No. 12 in 2:10-CV-951, at 5. The appointment of counsel for prisoners proceeding in forma pauperis is governed by 28 U.S.C. § 1915(e)(1), which provides that "[t]he court may request an attorney to represent any person unable to afford counsel." As the Sixth Circuit has observed, the appointment of counsel is not a constitutional right but rather "a privilege that is justified only by exceptional circumstances." Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993) (internal citations and quotations omitted). In determining whether exceptional circumstances exist, the court considers the complexity of the case and the ability of plaintiff to represent himself. Id.
The Court does not find that exceptional circumstances exist so as to justify appointment of counsel at this juncture for Plaintiff Leonard. Plaintiff has been able to identify the issues and has shown that he is capable of representing himself. Thus, Plaintiff Leonard's request for the appointment of counsel is DENIED without prejudice to renewal at a later stage of the proceedings.
WHEREUPON the motions to consolidate, Doc. No. 46 in 2:09-CV-961 and Doc. No. 4 in 2:10-CV-347, are GRANTED; Plaintiff Leonard's request to amend, Doc. No. 47 in 2:09-CV-961; Doc. No. 8 in 2:10-CV-347; and Doc. No. 12 in 2:10-CV-951, is DENIED; Plaintiff Leonard's motion for the appointment of counsel, Doc. No. 47 in 2:09-CV-961; Doc. No. 8 in 2:10-CV-347; and Doc. No. 12 in 2:10-CV-951, is DENIED without prejudice to renewal at a later stage of the proceedings. Defendant's motion to strike, Doc. No. 49 in 2:09-CV-961, is DENIED.
It is RECOMMENDED that the Motion for Default Judgment, Doc. No. 48 in 2:09-CV-961, be DENIED.
Plaintiff Leonard's motion for interim injunctive relief, Doc. No. 12 in 2:10-CV-951, remains pending.
If any party seeks review by the District Judge of this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); F.R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy thereof. F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
December 10, 2010
DATE