United States District Court, S.D. Ohio, Western Division
L. Litkovitz, United States Magistrate Judge.
an inmate at the Southern Ohio Correctional Facility
("SOCF") proceeding pro se, brings this prisoner
civil rights action under 42 U.S.C. § 1983 alleging
violations of his constitutional rights by defendants. This
matter is before the Court on plaintiffs motion to appoint
counsel (Doc. 39) and defendants' response in opposition
(Doc. 40). This matter is also before the Court on plaintiffs
motion to strike defendant Nurse Stacy Ray burn's answer
as untimely (Doc. 46) and defendants' corresponding
motion for leave to accept Nurse Rayburn's answer as
timely (Doc. 48); defendant Nurse Rayburn's motion for
leave to file a supplement to defendants' motion for
summary judgment (Doc. 50) and plaintiffs motion for leave to
reply to defendant Nurse Rayburn's supplement (Doc. 52);
and plaintiffs motion for sanctions (Doc. 45) and
defendants' response in opposition (Doc. 49).
Motion to Appoint Counsel
moves for the Court to appoint counsel to represent him
because (1) his claims are "so complex and intricate
that a trained attorney is necessary, " (2) he has tried
to recruit counsel with no results, (3) he suffers from
mental illness and physical disability (ulcerative colitis),
and (4) recruiting counsel would "substantially benefit
the court or the parties, potentially affecting the
outcome." (Doc. 39).
oppose plaintiffs motion to appoint counsel, arguing that
plaintiff is a frequent filer and "this case's
Docket indicates that [plaintiff] is a skilled litigator and
frankly sells himself short as one that cannot hold his own
in federal as well [sic] Ohio's Court of Claims cases and
pleadings." (Doc. 40 at 5). Defendants maintain that
plaintiff has not shown that exceptional circumstances exist
such that appoint of counsel in this civil matter is
warranted. (Id. at 7).
motion for appointment of counsel is denied. The does not
require the appointment of counsel for indigent plaintiffs in
cases such as this, see Lavado v. Keohane, 992 F.2d
601, 604-05 (6th Cir. 1993), nor has Congress provided funds
with which to compensate lawyers who might agree to represent
those plaintiffs. The appointment of counsel in a civil
proceeding is not a constitutional right and is justified
only by exceptional circumstances. Id. at 605-06.
See also Lanier v. Bryant, 332 F.3d 999, 1006 (6th
Cir. 2003). Moreover, there are not enough lawyers who can
absorb the costs of representing persons on a voluntary basis
to permit the Court to appoint counsel for all who file cases
on their own behalf The Court makes every effort to appoint
counsel in those cases which proceed to trial, and in
exceptional circumstances will attempt to appoint counsel at
an earlier stage of the litigation. No such circumstances
appear in this case. The Court also agrees with defendants
that plaintiffs filings in this present case and other cases
before this Court demonstrate an adequate understanding of
the law, including the relevant statutory and constitutional
provisions to pursue his claims and the relevant procedural
rules, such that an appointment of counsel is unjustified.
Therefore, plaintiffs motion to appoint counsel (Doc. 39) is
Plaintiffs Motion to Strike (Doc. 46) and Defendants'
Motion to Accept Nurse Rayburn's Answer as
moves to strike defendant Nurse Stacy Raybunfs answer. (Doc.
46). Plaintiff argues that summons was issued to Nurse
Rayburn on December 8, 2017 and she failed to file her answer
within 21 days of service as required by the Federal Rules.
oppose plaintiffs motion to strike and move the Court to
accept Nurse Rayburn's answer as timely. (Doc. 48).
Defendants represent that counsel was not provided with a
request for representation form and approval ("RFR
form'') thereof for Nurse Rayburn until February 5,
2018. (Id. at 3). The request for representation
form was accompanied by a postal service date card indicating
that service was executed on Nurse Rayburn on January 29,
2018. (Id.). Defendants maintain that plaintiff
mistakenly believes that service was executed on December 8,
2017. (Id. at 5). Defendants contend that counsel
was not aware of service on Nurse Rayburn until the RFR form
was received. (Id.). Subsequent to receiving the RFR
form, counsel filed an answer on Nurse Rayburn's behalf
on February 21, 2018. (Id.). As such, defendants
contend that both good cause and excusable neglect exist for
extending the timeline for Nurse Rayburn to file her answer.
an act may or must be done within a specified time, the court
may, for good cause, extend the time ... on motion made after
the time has expired if the party failed to act because of
excusable neglect." Fed R. Civ. P. 6(b)(1)(B). Excusable
neglect is determined by balancing: "(1) the danger of
prejudice to the nonmoving party, (2) the length of the delay
and its potential impact on judicial proceedings, (3) the
reason for the delay, (4) whether the delay was within the
reasonable control of the moving party, and (5) whether the
late-filing party acted in good faith." Nafziger v.
McDermott Int'l, Inc., 467 F.3d 514, 522 (6th Cir.
2006) (citing Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)).
case, the Court construes defendant Nurse Rayburn's
answer as timely. As an initial matter, plaintiffs argument
that service of process was perfected on Nurse Rayburn on
December 8, 2017 is inaccurate. On December 8, 2017, the
Court ordered that the United States Marshal serve a copy of
the original and supplemental complaints, summons forms, and
the Court's Order on Nurse Rayburn. (Doc. 25). That same
day, summons was issued as to Nurse Rayburn and sent
to the United States Marshal for service. (Doc. 26). However,
as defendants indicate, service on Nurse Rayburn was not
executed until January 29, 2018. (Doc. 48 at 3).
Thus, service of process did not become perfected until
January 29, 2018.
counsel did not receive Nurse Rayburn's RFR form until
February 5, 2018, the Court determines that excusable neglect
exists for her failure to file an answer within 21 days of
the perfected service date. First, the length of the delay in
the filing of Nurse Rayburn's answer is minimal. Service
of process was perfected on January 29, 2018, and thus, Nurse
Rayburn's answer would have been due within 21 days-on
February 19, 2018. Nurse Rayburn filed her answer only two
days later-on February 21, 2018. Second, as defendants
mention, plaintiff is not prejudiced by this brief delay
because Nurse Rayburn's medical exam report was included
in defendants' motion for summary judgment that was filed
on December 22, 2017 and, thus, plaintiff generally had
knowledge of the contents of Nurse Rayburn's answer.
(See Doc. 28-1). Third, the reason for the brief
delay in the filing of Nurse Rayburn's answer was
legitimate and no bad faith on the part of Nurse Rayburn
exists because she was not formally represented by counsel
until the date counsel accepted her RFR form on February 5,
2018. Accordingly, the Court determines that plaintiffs
motion to strike Nurse Rayburn's answer (Doc. 46) is
DENIED and defendants' motion for leave
to timely file Nurse Rayburn's answer (Doc. 48) is
GRANTED. In light of the resolution of the
motion to strike, defendant Nurse Rayburn's motion for
leave to file a supplement to defendants' motion for
summary judgment (Doc. 50) is GRANTED and
plaintiffs motion for leave to reply to the supplement (Doc.
52) is GRANTED. III. Plaintiffs Motion for Sanctions
moves the Court to issue sanctions against Assistant Ohio
Attorney General George Horvath pursuant to Fed.R.Civ.P. 11.
(Doc. 45). Plaintiff argues that Mr. Horvath "submitted
a false argument that aint [sic] evidence based in his answer
of Nurse Stacy Rayburn with jury trial requested
hereon." (Id.). Specifically, plaintiff
contends that Mr. Horvath falsely ...