The opinion of the court was delivered by: Terence P. Kemp United States Magistrate Judge
This prisoner civil rights action was filed by Hassen Habibi I'JuJu, an inmate at the Ross Correctional Institution, against various officials of either that institution or the Ohio Department of Rehabilitation and Correction. Briefly stated, Mr. I'Juju asserts that his rights under the Eighth and Fourteenth Amendments were violated by the defendants' persistent refusal to order him special footwear which was prescribed by both the RCI podiatrist and the podiatry clinic, and which, he contends, is necessary both to alleviate pain in his right foot and to prevent the development of permanent nerve damage in his left foot. The case is now before the Court to resolve various pending motions, all of which preceded the more recent filing of a summary judgment motion.
Early on in the case, defendants moved for leave to depose Mr. I'Juju, a motion which the Court granted. He then moved to strike that motion (#13). The grounds for such relief are unclear, although one of the things Mr. I'Juju asserts in his motion is that the Court should not have sent a courtesy copy of the complaint to the Ohio Attorney General's office because the Attorney General had not, at that time, entered an appearance on behalf of the defendants. He subsequently moved for the appointment of counsel (#15).
On February 10, 2006, Mr. I'Juju moved to compel answers to written discovery which he had propounded to the defendants (#24). Defendants moved to strike that motion on grounds that Mr. I'Juju did not make an extra-judicial effort to resolve the issues raised in the motion (#26). He then refiled the motion to compel on March 2, 2006 (#28). Defendants responded to that motion to compel on March 13, 2006, and renewed their motion to strike. This order will address all of these pending motions.
Turning first to the motion to strike and the motion to appoint counsel, the Court notes that the motion to strike does not really set forth any grounds upon which the motion to depose Mr. I'Juju should be stricken. The motion was filed by counsel for defendants, who had entered an appearance in the case when she filed a motion for extension of time to answer. The Court's sending a courtesy copy of the complaint to the Attorney General's office is a routine procedure and does not mean that the Attorney General has decided to represent the defendants or that the Court intends that to occur. It is done so that the likelihood of a prisoner complaint getting lost among the volume of paperwork sent to prison officials is lessened. The Attorney General does, in the Court's experience, make an independent judgment about whether to provide representation to the defendants, and there are times when such representation is declined. In short, nothing about either the Court's procedures or the motion for leave to depose suggest any irregularity which would cause the motion for leave to depose to be improper, and the motion to strike it will therefore be denied.
As far as appointment of counsel is concerned, the Court does not have the power to appoint counsel to serve in this case unless counsel is also willing to serve. The Court's power under 28 U.S.C. §1915(e)(1) is limited to requesting that an attorney represent an in forma pauperis litigant. Mallard v. United States District Court, 490 U.S. 296 (1989). In determining whether to request that an attorney represent the plaintiff, however, the Court is guided by the following principles.
In prisoner litigation, counsel is appointed only in an exceptional case, and such appointment is not appropriate when the likelihood of the prisoner's success on the merits is highly dubious. Willett v. Wells, 469 F. Supp. 748 (E.D.Tenn. 1977), aff'd 595 F.2d 1227 (6th Cir. 1979). Such an exceptional case exists when "denial of proper representation would result in fundamental unfairness impinging upon the prisoner's due process rights...." Childs v. Duckworth, 705 F.2d 915 (7th Cir. 1983), cited with approval in Mars v. Hanberry, 752 F.2d 254 (6th Cir. 1985). In Childs, the Court identified the following factors to be considered: (1) whether the plaintiff's claim appears to be meritorious; (2) the plaintiff's ability to investigate the factual matters at issue; (3) whether the case is highly dependent upon effective cross-examination, such as where proper resolution depends upon determining which of several witnesses is being truthful; (4) whether the plaintiff appears capable of presenting the evidence in a coherent fashion; and (5) the complexity of the factual and legal issues presented. See also Maclin v. Freake, 650 F.2d 885 (7th Cir. 1981), stating that the existence of a colorable claim is only a threshold which must be passed in order to permit the Court to consider requesting that counsel serve, and that, even in a case where the plaintiff's claim is colorable, if the plaintiff is able to make an investigation, the testimony will not be substantially in conflict, and the plaintiff can present the evidence, counsel need not be appointed.
Here, until the Court has ruled on the summary judgment motion, it is difficult to say whether Mr. I'Juju has a legitimate chance of success on the merits. The facts of this case appear to be within his own knowledge, and he has filed very articulate and well-reasoned documents with the Court. Under these circumstances, the motion to appoint counsel will be denied without prejudice to its renewal should the Court conclude that there are triable issues of fact remaining after a ruling on the pending summary judgment motion is made.
The Court now turns to the discovery-related motions. Mr. I'Juju has filed two motions to compel production of the same information, and defendants have moved to strike both. They assert Mr. I'Juju did not make known to them any of his objections to their discovery responses, and that he did not comply with Fed.R.Civ.P. 37(a)(2)(B), which provides that a motion to compel discovery "must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action."
It is unclear to what extent the parties conferred or attempted to confer about the issues raised in the motions. Certainly, to the extent that Mr. I'Juju complains that some of the documents he received were incomplete or that information was not properly duplicated in the photocopying process, those are issues that a good faith effort to resolve with defendants' counsel should take care of without the need for Court intervention. The Court will therefore not address those issues at this ...