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Sublett v. White

United States District Court, W.D. Kentucky, Paducah Division

August 21, 2014

DAMIEN A. SUBLETT, Plaintiff,
v.
RANDY WHITE, et al., Defendants.

MEMORANDUM OPINION

THOMAS B. RUSSELL, District Judge.

This matter is before the Court upon Plaintiff's Motion for Appointment of Counsel. (Docket No. 93.) For the following reasons, the Court will DENY Plaintiff's Motion for Appointment of Counsel. (Docket No. 93.)

Plaintiff Damien Sublett has moved to strike and/or dismiss Defendants' motion for summary judgment. (Docket Nos. 95, 105.) Defendants have responded to the Motion to Strike. (Docket No. 101.) Plaintiff has replied. (Docket No. 108.) For the following reasons, the Court will DENY Plaintiff's Motions to Strike and/or Dismiss Defendants' Motion for Summary Judgment. (Docket Nos. 95, 105.)

Defendants James Beavers, Duke Petit, Daniel Smith, Garth Thompson, Bruce Von Dwingelo, Randy White, Earnest William, and Chris Wilson have made a Motion for Summary Judgment. (Docket No. 92.) For the following reasons, the Court will GRANT Defendants' Motion for Summary Judgment. (Docket No. 92.)

Plaintiff has moved for reconsideration of the Court's prior Memorandum Opinion and Order at Docket No. 85 granting in part Defendants' Motion for Summary Judgment. (Docket Nos. 94, 98.) Defendants have responded. (Docket Nos. 100, 103.) Plaintiff has replied. (Docket No. 110.) For the following reasons, the Court will DENY Plaintiff's Motions to Reconsider. (Docket Nos. 94, 98.)

Plaintiff has also moved for reconsideration of the Court's prior Memorandum Opinion and Order at Docket No. 91 denying him summary judgment. (Docket No. 99.) Defendants have responded. (Docket No. 104.) Plaintiff has replied. (Docket No. 109.) For the following reasons, the Court will DENY Plaintiff's Motion to Reconsider. (Docket No. 99.)

Plaintiff has moved to strike the affidavit of Duke Pettit. (Docket No. 97.) Defendants have responded. (Docket No. 101.) For the following reasons, the Court will DENY Plaintiff's Motion to Strike the Affidavit of Duke Pettit. (Docket No. 97.)

DISCUSSION

Plaintiff's Motion for Appointment of Counsel at Docket No. 93

Plaintiff has made a Motion for Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1). (Docket No. 93.) Appointment of counsel is not a constitutional right in a civil case such as this action brought under 42 U.S.C. § 1983. Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993). Title 28 of the United States Code, Section 1915(e)(1)[1] indicates that courtenlisted assistance of counsel is not mandatory but merely a matter of discretion. See, e.g., Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987) ("[T]he appointment of counsel in a civil case is, as is the privilege of proceeding in forma pauperis, a matter within the discretion of the court. It is a privilege and not a right.'") (quoting United States v. Madden, 352 F.2d 792, 793 (9th Cir. 1965)). "It is a privilege that is justified only by exceptional circumstances.'" Lavado, 992 F.2d at 606 (quoting Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985)). "In determining whether exceptional circumstances' exist, courts have examined the type of case and the abilities of the plaintiff to represent himself.' This generally involves a determination of the complexity of the factual and legal issues involved.'" Id. (citations omitted).

The Court finds that the complexity of the issues in this case does not necessitate the appointment of counsel. Further, based on a review of the documents filed by Plaintiff thus far, it appears that he is articulate and logical in his arguments and familiar with the workings of the legal system, and therefore able to represent himself sufficiently at this time. Consequently, the Court finds that Plaintiff has not set forth any "exceptional circumstances" warranting appointment of counsel at this time. Accordingly, Plaintiff's Motion for Appointment of Counsel is DENIED. (Docket No. 93.)

Plaintiff's Motions to Strike and/or Dismiss Defendants' Motion for Summary Judgment

Plaintiff moves to strike and/or dismiss Defendants' Motion for Summary Judgment. (Docket Nos. 95, 105.) Plaintiff points out that the Revised Scheduling Order, (Docket No. 49, at 4), states that "[a]ll dispositive motions shall be filed no later than February 17, 2014, " and that Defendants' Motion for Summary Judgment was filed on June 25, 2014. However, in a subsequent Order, the Court stated that all dispositive motions were to be filed by June 26, 2014. (Docket No. 87.) In any event, the Court, in its discretion, will permit consideration of Defendants' Motion for Summary Judgment. Therefore, the Court will DENY Plaintiff's Motion to Strike Defendants' Motion for Summary Judgment. (Docket No. 95.)

Plaintiff has also moved to strike and/or dismiss Defendants' Motion for Summary Judgment based on "doctrines of res judicata and collateral estoppel." (Docket No. 105, at 1.) The crux of Plaintiff's argument is that the Court has already denied Defendants summary judgment and they have not moved the Court to reconsider the previous Order. ( Id. at 1-2.) This argument is not without merit. However, as will discussed further below, while Defendants' have technically labeled their Motion a "Motion for Summary Judgment, " the true nature of their Motion is one for reconsideration. The Court will permit ...


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