Morris v. Washington

Full title: DALE LESTER MORRIS, Plaintiff, v. HEIDI WASHINGTON, CARMAN MACINTIRE, and…

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

Date published: Oct 28, 2021

No. 20-13268 (E.D. Mich. Oct. 28, 2021)

Opinion

20-13268

10-28-2021

DALE LESTER MORRIS, Plaintiff, v. HEIDI WASHINGTON, CARMAN MACINTIRE, and SHERMAN CAMPBELL, Defendants.

NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE

ORDER DENYING PLAINTIFF'S MOTION FOR THE APPOINTMENT OF COUNSEL [39]

NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE

This prisoner civil rights case was dismissed for failure to state a claim upon which relief may be granted on August 13, 2021. (ECF No. 33.) Plaintiff then filed a notice of appeal with the Sixth Circuit Court of Appeals. (ECF No. 35.) This Court subsequently denied Plaintiff's application to proceed in forma pauperis on appeal, finding an appeal cannot be taken in good faith. (ECF No. 38.) The matter is now before the Court on Plaintiff's motion for the appointment of counsel. (ECF No. 39.)

Because Plaintiff's complaint has been dismissed and this case is now closed, Plaintiff's motion is moot. Also, a notice of appeal generally “confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal.” Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985) (citation omitted). Thus, the Court may not “‘alter the status of the case as it rests before the Court of Appeals.'” See United States v. Gallion, 534 Fed.Appx. 303, 310 (6th Cir. 2013) (quoting Dayton Indep. Sch. Dist. v. United States Mineral Prods. Co., 906 F.2d 1059, 1063 (5th Cir. 1990)).

But even if this case were still pending before the Court, as a general matter, “[t]he appointment of counsel in a civil proceeding is not a constitutional right and is justified only in exceptional circumstances.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003) (citation omitted). To determine whether exceptional circumstances exist, courts consider the type of case and the ability of the plaintiff to represent himself. Id. Here, Plaintiff demonstrated an ability to represent himself, but the Court ultimately found that he failed to state a claim upon which relief may be granted. Thus, there are no exceptional circumstances that would have warranted the appointment of counsel.

For the foregoing reasons, Plaintiff's motion for the appointment of counsel is DENIED.

SO ORDERED.

I hereby certify that a copy of the foregoing document was served upon counsel of record on October 28, 2021, by electronic and/or ordinary mail.

Lisa Bartlett Case Manager