Brown v. Haiderer

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVID BROWN,

Plaintiff,

Case No. 21-cv-11565

v. Hon. Matthew F. Leitman

DONALD HAIDERER,

Defendants.

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ORDER (1) DENYING PLAINTIFF’S MOTION FOR THE

APPOINTMENT OF COUNSEL (ECF No. 97) AND (2) DIRECTING

PLAINTIFF TO FILE OBJECTIONS TO REPORT AND

RECOMMENDATION BY NO LATER THAN SEPTEMBER 16, 2024

Plaintiff David Brown is a state prisoner currently in the custody of the

Michigan Department of Corrections. In this civil-rights action, Brown alleges that

he received inadequate medical treatment while he was incarcerated in the Saginaw

Correctional Facility in 2021. (See Compl., ECF No. 1.)

The sole remaining defendant in this action is Defendant Donald Haiderer.

On February 20, 2024, Haiderer moved for summary judgment. (See Mot., ECF No.

89.) The motion was referred to the assigned Magistrate Judge, and on June 17,

2024, the Magistrate Judge issued a report and recommendation in which she

recommended that the Court grant Haiderer’s motion (the “R&R”). (See R&R, ECF

No. 94.) At the conclusion of the R&R, the Magistrate Judge informed the parties

that if they wanted to file objections to the R&R, they needed to do so within fourteen

days. (See id., PageID.915-916.)

On June 27, 2024, Brown filed a motion in which he asked for additional time

– until July 22, 2024 – to file his objections to the R&R. (See Mot., ECF No. 95.)

Brown explained that he was “only recently able to obtain the assistance of an inmate

legal writer” and that that person “need[ed] some time to become familiar with this

[case] to properly prepare [Brown’s] objections to the R&R.” (Id., PageID.918.) The

Court granted Brown’s motion, provided him even more time than he asked for, and

directed him to file objections to the R&R by August 5, 2024. (See Order, ECF No.

96.)

Brown has not filed any objections to the R&R. Instead, on August 3, 2024,

he filed a motion to appoint counsel. (See Mot., ECF No. 97.) In that motion, Brown

says that the Court should appoint counsel for three reasons: (1) Brown’s status as

an inmate, (2) the complex nature of the case and Brown’s need to obtain expert

medical witnesses to review his medical records and provide affidavits, and (3)

Brown’s visual impairment that Brown says renders him unable to prepare responses

to the Court. (See id.)

The Court has carefully reviewed Brown’s motion and concludes that he is

not entitled to the appointment of counsel. As the Court explained to Brown when

it denied his previous motion for the appointment of counsel (see Order, ECF No.

88), there is no constitutional right to the appointment of counsel in civil cases. See

Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987) (“[A]ppointment of counsel

in a civil case is ... a matter within the discretion of the court. It is a privilege and

not a right.”) (internal quotation omitted). Despite all three issues that Brown has

identified, with the assistance of a legal writer, he has been able to successfully

litigate this case for the past three years. Indeed, Brown successfully defeated part

of Haiderer’s initial motion for summary judgment, which involved marshalling the

same type of evidence that Brown would need to review to file objections to the

R&R. (See Order, ECF No. 74.) And Brown filed a substantive response to

Haiderer’s underlying summary judgment motion that cited the Court to specific

medical records and explained why those records did not entitle Haiderer to

summary judgment. (See Resp., ECF No. 91.) Finally, the Court recognizes that

Brown suffers from a visual impairment, but that impairment has not stopped him

from effectively representing himself previously in this matter, and Brown has not

persuaded the Court that his visual impairment has deteriorated to such a degree that

he is unable to respond to the R&R and/or work with a legal writer to prepare that

response.

Accordingly, for all of the reasons explained above, Brown’s motion for the

appointment of counsel (ECF No. 97) is DENIED. However, the Court does want

to give Brown one last opportunity to file objections to the R&R. He shall file those

objections by no later than September 16, 2024. That is 27 days from the date of

this order. That should be more than sufficient time for Brown to file objections to

the R&R given that (1) he should be well-familiar with the issues raised in Haiderer’s

summary judgment motion and discussed in the R&R because they are largely the

same issues that were addressed in Haiderer’s first summary judgment motion

(which the Court allowed Haiderer to augment with additional medical records and

re-file) and (2) it has been more than two months since the Magistrate Judge issued

the R&R.

IT IS SO ORDERED.

s/Matthew F. Leitman

MATTHEW F. LEITMAN

UNITED STATES DISTRICT JUDGE

Dated: August 20, 2024

I hereby certify that a copy of the foregoing document was served upon the

parties and/or counsel of record on August 20, 2024, by electronic means and/or

ordinary mail.

s/Holly A. Ryan

Case Manager

(313) 234-5126