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Cooper v. Bower

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

December 15, 2017



          Thomas B. Russell, Senior Judge United States District Court.

         This matter comes before the Court upon four motions: first, Plaintiff Michael Cooper (“Plaintiff”) has filed a Motion to Appoint Counsel. [DN 177.] Second, Plaintiff has filed a Motion to Alter or Amend this Court's Memorandum Opinion and Order granting in part and denying in part Defendants' Motion for Summary Judgment. [DN 178.] Third, Plaintiff has filed a Motion to Alter or Amend this Court's Memorandum Opinion and Order denying Plaintiff's Motion for Partial Summary Judgment. [DN 183.] Finally, Defendants have filed a Motion for an Extension of Time to file a Response to another motion filed by Plaintiff. [DN 187.] The merits of these motions are discussed below.

         I. Factual Background

         Plaintiff is an inmate currently incarcerated at the Kentucky State Penitentiary (“KSP”). From December 2015 to September 2016, Plaintiff filed a Complaint [DN 1] and six Amended Complaints. [DN 10, 12, 32, 38, 39, 52.] In his initial Complaint, filed December 18, 2015, Plaintiff initiated a pro se 42 U.S.C. § 1983 prisoner civil rights action. [DN 1.] Throughout his additional filings, Plaintiff has alleged that various Defendants violated his right to bodily privacy, contravening the Fourth Amendment; that Defendants engaged in retaliatory conduct in violation of the First Amendment in response to Plaintiff's alleged protected activities; that Defendants utilized excessive force against Plaintiff and subjected him to cruel and unusual punishment, thereby violating his Eighth Amendment rights; that Defendants unlawfully interfered with Plaintiff's legal mail at KSP; and that certain money Plaintiff had in his personal prison account was unlawfully converted by Defendants. Some of Plaintiff's claims were dismissed upon Defendants' Motion for Summary Judgment. [See DN 174.]

         II. Plaintiff's Motion to Appoint Counsel

         The first Motion at issue is Plaintiff's Motion to Appoint Counsel. [DN 177.] Pursuant to 28 U.S.C. § 1915(e)(1), in proceedings in forma pauperis, “[t]he court may request an attorney to represent any person unable to afford counsel.” Importantly though, “[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) (emphasis added). When considering whether such “exceptional circumstances exist, courts typically consider ‘the type of case and the ability of the plaintiff to represent himself.'” Id. (quoting Archie v. Christian, 812 F.2d 250, 253 (5th Cir. 1987) and Poindexter v. Federal Bureau of Investigation, 737 F.2d 1173, 1185 (D.C. Cir. 1984)). “This generally involves a determination of the ‘complexity of the factual and legal issues involved.'” Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993) (quoting Cookish v. Cunningham, 787 F.2d 1, 3 (1st Cir. 1986)).

         In support of his contention that counsel should be appointed to him in this case, Plaintiff argues the following points: first, that he is unable to afford counsel; second, that his placement in segregation “will greatly limit his ability to litigate…the issues involved in this case[, which] are complex, and will require significant research and investigation.” Next, Plaintiff argues that a trial in this case would involve “conflicting testimony, and counsel would better enable plaintiff to present evidence and cross examine witnesses.” Plaintiff further argues that the Court should appoint counsel because “Plaintiff is not fully [equipped] to present an[] argument and has never done [a trial] in a civil court case, ” and that he has previously attempted to obtain a lawyer, a request which was denied. [See DN 177, at 1-2.]

         With respect to Plaintiff's first argument, the fact that he is financially incapable of paying for counsel does not entitle him to representation in a civil case. As explained above, Plaintiff's right to representation is not constitutionally guaranteed in civil actions, see Lanier, 332 F.3d at 1006, and his economic circumstances, although certainly unfortunate, do not constitute the type of exceptional circumstances contemplated by the statute. Next, with respect to his placement in segregation, the Court does not find this to be an exceptional circumstance either. Indeed, in considering the previous filings in this case, Plaintiff appears to have been in segregation for much of the life of this case, which was commenced on December 18, 2015. It is unclear whether he has remained in segregation uninterrupted this entire time, but there are repeated references to his being placed in segregation both before and during this case.

         Plaintiff's third argument is unpersuasive. Virtually every case, whether criminal or civil, includes conflicting testimony, and virtually every trial involves the cross-examination of one or more witnesses. The Court is sensitive to the fact that Plaintiff worries he will not be able to effectively conduct examinations of witnesses, but such a commonplace occurrence in the life of every trial cannot constitute exceptional circumstances. The same rationale holds true for Plaintiff's fourth argument that he has never proceeded to trial in a civil action before. Such a commonplace occurrence, standing alone, cannot be grounds for the appointment of counsel in a civil action such as this. Finally, the fact that Plaintiff has previously sought counsel does not bear upon the analysis of whether exceptional circumstances exist, such that the Court would appoint counsel to Plaintiff.

         As an additional matter, the Court finds the claims involved in this case to be relatively straightforward: currently, Plaintiff has First Amendment Retaliation claims against nine current or former employees of KSP, and has demonstrated in his pleadings, motions, and other filings with this Court a relatively extensive knowledge and understanding of these claims and the relevant case law. Plaintiff also has an Eighth Amendment Excessive-Use-of-Force claim against three KSP employees, which arise from one simple set of facts, of which the Plaintiff has demonstrated he possesses sufficient knowledge. In sum, the nature of the case, coupled with Plaintiff's displayed knowledge of the case and the law, lead this Court to conclude that counsel should not be appointed in this case. Plaintiff's Motion is denied.

         III. Plaintiff's Motions to Alter or Amend Previous Rulings

         A. Reconsideration of Court's Grant of Partial Summary Judgment for Defendants

         The next motion at issue is Plaintiff's Motion [DN 178] to Alter or Amend this Court's previous ruling granting in part and denying in part Defendants' Motion for Summary Judgment. [See Memorandum Opinion & Order at ¶ 174.] Plaintiff purports to proceed under Federal Rule of Civil Procedure 59(e), but because this Court's ruling did not decide all the rights and liabilities of the parties involved, the Court will construe Plaintiff's Motion as one for reconsideration of an interlocutory order pursuant to Rule 54(b). See Smith v. City of Wyoming, 821 F.3d 697, 706 (6th Cir. 2016) (“We generally construe filings by pro se litigants liberally.”). Under Rule 54(b), “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” (emphasis added).

         “District courts have authority both under common law and Rule 54(b) to reconsider interlocutory orders and to reopen any part of a case before entry of final judgment.” Rodriguez v. Tennessee Laborers Health & Welfare Fund, 89 F. App'x 949, 959 (6th Cir. 2004); see also Leelaneu Wine Cellars, Ltd. v. Black & Red, Inc., 118 F. App'x 942, 946 (6th Cir. 2004) (explaining that “[a]s long as a district court has jurisdiction over the case, then it possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient.”). As the Sixth Circuit instructed in Louisville/Jefferson Cnty. Metro Gov't v., L.P., 590 F.3d 381, 389 (6th Cir. 2009), “courts will find justification for reconsidering interlocutory ...

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