Opinion
2:23-cv-11490
06-06-2024
QUATRAIL SMITH, Plaintiff, v. DEPUTY VOURHEES, et al., Defendants.
Matthew F. Leitman, District Judge.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION TO DENY AS MOOT DEFENDANTS' MOTIONS TO DISMISS (ECF NO. 13 AND 17) AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT (ECF NO. 22), DEEMING ECF NO. 23 TO BE THE OPERATIVE COMPLAINT, AND DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL (ECF NO. 24)
ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE
I. ORDER AND RECOMMENDATION:
Plaintiff's motion for leave to file an amended complaint (ECF No. 22) is GRANTED and motion for appointment of counsel (ECF No. 24) is DENIED.
As the operative pleading is now the amended complaint, the Court should DENY AS MOOT Defendant Genesee County Jail's motion to dismiss (ECF No. 13) and Defendant Vourhees's motion to dismiss (ECF No. 17) inasmuch as they were based on the original complaint.
II. REPORT
A. Background
On September 19, 2022, Plaintiff Quatrail Smith, proceeding in pro per, filed a lawsuit in the Western District of Michigan alleging violations of his civil rights related to incidents arising on May 30, 2022. (See Case No. 1:22-12318, ECF No. 1, PageID.1-2.) The case was transferred to the Eastern District of Michigan and assigned to the Honorable Thomas L. Ludington, who promptly dismissed the action without prejudice as it was brought solely against an entity (the Genesee County Jail) which was not a “person” subject to suit under 42 U.S.C. § 1983. (See Case No. 1:22-12318, ECF No. 7, PageID.7.)
Less than a year later, Plaintiff, again proceeding in pro per, filed the instant action in the Western District of Michigan, alleging violations of the Seventh and Eighth Amendments for “excessive use of force, cruel and unusual punishment, and failure to protect from inmate assault.” (ECF No. 1, PageID.3-4.) Plaintiff brought suit again against the Genesee County Jail, but also against Deputy (Unknown) Vourhees, and three John Doe Deputies. Specifically, Plaintiff alleges that on May 29, 2022,two John Doe deputies came into his cell in the restricted housing unit in Genesee County Jail and slammed him to the ground, pulled his hair, repeatedly punched him in the back of his head, and then put a knee on his neck, holding him to the ground with full body weight. (ECF No. 1, PageID.3.)
Although Plaintiff the date is off by one day, it appears that both complaints revolve around the same underlying incident.
Plaintiff alleges that he was then lifted off the floor, placed tightly in handcuffs by a third John Doe deputy, who then took him to a restraint chair in the visiting area, where he was left. (Id.) He claims that Defendant Deputy Vourhees opened the door to where Plaintiff was restrained, and an inmate came into the room and struck him in the head until someone deployed pepper spray into the area. (Id.) Deputy Vourhees then handcuffed the inmate but allegedly left Plaintiff restrained in the chair “in the mist of pepper spray” and did not offer him medical attention. (Id.)
On June 23, 2023, the Western District of Michigan transferred the case, sua sponte, to the Eastern District of Michigan under 28 U.S.C. § 1391(b) for improper venue. (ECF No. 3, PageID.14.) The case was assigned to U.S. District Judge Matthew F. Leitman, who referred the matter to me “for all pretrial proceedings, including a hearing and determination of all non-dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(A) and/or a report and recommendation on all dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(B).” (ECF No. 10, PageID.18.)
On October 13, 2023, the Genesee County Jail filed a motion to dismiss (ECF No. 13) and, on October 25, 2023, Defendant Vourhees filed a motion to dismiss (ECF No. 17). On November 20, 2023, Plaintiff filed a motion to amend his complaint (ECF No. 22), and a motion to appoint counsel (ECF No. 24).
B. Standard
1. Amendment under Rule 15
Under Fed.R.Civ.P. 15(a), a party may amend its pleadings at this stage of the proceedings only after obtaining leave of court. The Rule provides that the court should freely give leave for a party to amend its pleading “when justice so requires.” Fed.R.Civ.P. 15(a)(2). “Nevertheless, leave to amend ‘should be denied if the amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or would be futile.'” Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 495 (6th Cir. 2011) (quoting Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995)). An amendment is futile if it could not withstand a motion to dismiss. Thikol Corp. v. Dept. of Treasury, 987 F.2nd 376, 383 (6th Cir. 1993).
When deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), courts must “construe the complaint in the light most favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (concluding that a plausible claim need not contain “detailed factual allegations” but must contain more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action”). Facial plausibility is established “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant's conduct.” 16630 Southfield Ltd. P'Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013).
C. Discussion
1. Plaintiff's motion for leave to file an amended complaint (ECF No. 122)
As noted above, the Genesee County Jail filed a motion to dismiss on October 13, 2023. (ECF No. 13.) The Court ordered Plaintiff to file a response to the motion by November 13, 2023. (ECF No. 15.) Thereafter, Defendant Vourhees filed a motion to dismiss (ECF No. 17), to which the Court ordered Plaintiff to respond by November 20, 2023 (ECF No. 18). Plaintiff submitted a joint response to both motions, which was signed on November 9, 2023, and docketed on November 20, 2023. (ECF No. 25.) On November 13, 2023, Plaintiff signed and mailed the instant motion to amend his complaint, which was docketed on November 20, 2023. (ECF No. 22.)
Federal Rule of Civil Procedure 15 provides that “[a] party may amend its pleading once as a matter of course no later than . . . 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1)(B). Plaintiff signed his motion to amend on November 13, 2023, one month after the Genesee County Jail filed its motion to dismiss, and on the exact date on which the Court ordered Plaintiff to file a response to the motion to dismiss.The motion was postmarked the next day, on November 14, 2023. (ECF No. 22, PageID.91.) Nonetheless, Plaintiff did not file the motion within the 21 days proscribed by Rule 15(a)(1)(B) to allow an amendment as a matter of course. “The time permitted by the Rules for a response to a 12(b) motion to dismiss and the time permitted by the Rules to amend a complaint as a matter of course pursuant to Rule 15(a)(1) are two separate deadlines.” Webb v. Republic Bank & Tr. Co., No. 3:11-CV-423-R, 2012 WL 2254205, at *2 (W.D. Ky. June 15, 2012). Although the Court set the deadline to respond to the motion to dismiss as November 13, 2023, “extending the time to respond to a 12(b) motion to dismiss does not automatically extend the separate deadline to amend a complaint as a matter of course pursuant to 15(a)(1).” Id. (citing Hayes v. District of Columbia, 275 F.R.D. 343, 346 (D.D.C. July 29, 2011); Ramos v. Aurora Loan Servs ., No. 09-61938, 2010 WL 966856 at *1 (S.D.Fla. Mar. 15, 2010)).
The Court considers the motion filed when plaintiff signed it on November 13, 2023. Under the prison mailbox rule, “a pro se prisoner's complaint is deemed filed when it is handed over to prison officials for mailing to the court.” Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008). The prison mailbox rule applies to motions. See McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997) (motion for extension of time “is deemed filed when the inmate gives the document to prison officials for mailing”).
Because Plaintiff was one week late to amend as of right under Rule 15(a)(1)(B), he must proceed under Rule 15(a)(2) which states that “[i]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave.” As Defendants do not consent to the amendment, Plaintiff can amend only by the Court's leave, which should be given freely when justice so requires. Rule 15(a)(2).
Rule 15(a) supports the “principle that cases should be tried on their merits” and not on technicalities, and thus “assumes ‘a liberal policy of permitting amendments.'” Inge v. Rock Fin. Corp., 388 F.3d 930, 937 (6th Cir. 2004) (quoting Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986)). In determining whether to grant the amendment, the Court considers the factors set forth in Foman v. Davis, 371 U.S. 178, 182 (1962) - “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”
a. Jail no longer named as a defendant
Plaintiff's proposed amended complaint remedies some of the issues raised by Defendants in their motions to dismiss. First, the proposed amended complaint drops the Genesee County Jail as a defendant, listing instead only Defendant Vourhees and three John Doe officers. (ECF No. PageID. 94-95.) Removing the Genesee County Jail as a Defendant resolves all the arguments raised by the Jail in its motion to dismiss.Curiously, despite the fact that the Jail is not listed as a defendant in the proposed amended complaint, Defendants argue in their response to the motion to amend that “the Genesee County Jail is not a juridical entity” and that Plaintiff cannot rely upon respondeat superior as to the Genesee County Jail.” (ECF No. 29, PageID.162, 163.) Because the Jail is not listed as a defendant in the proposed pleading, these arguments are wholly irrelevant to the issues before the Court.
In its motion to dismiss, Defendant Genesee County Jail argued that it is not a legally cognizable entity subject to suit under § 1983, because § 1983 imposes liability only on a “person” who violates an individual's federal constitutional or statutory rights. Defendant's motion was well-supported as municipal agencies of cities in Michigan are not entities amenable to suit under section 1983. Boykin v. Van Buren Twp., 479 F.3d 444, 450 (6th Cir. 2007) (“Van Buren Township Police Department is subsumed within Van Buren Township as a municipal entity to be sued under § 1983, and thus the Police Department was improperly included as a separate defendant in [the plaintiff's] suit.”); Gray v. Midland Cnty. Jail, No. 2:22-CV-10270, 2022 WL 1073194, at *2 (E.D. Mich. Apr. 8, 2022) (Edmunds, J.) (“It is well-settled that county jails, sheriff departments, and other governmental agencies are not legal entities subject to suit under § 1983.”) (citing cases that county jails, sheriff departments, and other governmental agencies are not legal entities amenable to suit under § 1983).
Plaintiff's proposed amended complaint also excludes any allegations under the 7th Amendment of the Constitution, which Plaintiff had brought under his initial pleading but (following Defendant Vourhees's motion to dismiss) now contends was an “honest mistake.” (ECF No. 22, PageID.89.)
b. Failure to Protect Claim
The only two remaining arguments presented in Defendants' opposition response to Plaintiff's motion to amend are: (1) that the proposed amended complaint is futile because it fails to allege that Defendant Vourhees was subjectively aware of the risk to Plaintiff or that Defendant Vourhees applied excessive force causing Plaintiff's serious pain; and, (2) since the amended complaint fails to allege facts supporting an Eighth Amendment claim, Defendant Vourhees is entitled to qualified immunity. (ECF No. 29, PageID.162.) Thus, both of Defendants' remaining arguments hinge on whether Plaintiff has adequately alleged an Eighth Amendment claim.
Defendants correctly point out that “[a]n Eighth Amendment failure-to-protect claim requires an allegation that the official was subjectively aware of the risk to the plaintiff and failed to take measures to evade it.” (ECF No. 29, PageID.161 (citing Reedy v. West, 988 F.3d 907 (6th Cir. 2021).)Defendants assert:
Both parties assume, without analysis, that Plaintiff's claims should be analyzed under Eighth Amendment jurisprudence. Plaintiff alleges that his injuries occurred on May 29, 2022, on which date Defendant asserts “Defendant was convicted of murder and weapons offenses, and was housed in the Genesee County Jail awaiting transfer to the Michigan Department of Corrections.” (ECF No. 17, PageID.46.) Given the timing of Plaintiff's alleged injuries, any further motion practice will need to first focus on whether Plaintiff's claims should be analyzed under the Eighth Amendment subjective standard, or the more lenient Fourteenth Amendment objective standard for pretrial detainees. See Kingsley v. Hendrickson, 576 U.S. 389, 402 (2015). The Court need not address this unraised issue at this point, however, given that the gravity of Plaintiff's allegations, construed liberally and drawing all inferences in favor of Plaintiff, would withstand a motion to dismiss under either standard.
Plaintiff's Complaint and Amended Complaint fail to allege that Defendant was subjectively aware of the risk to Plaintiff. It is one thing for Plaintiff to allege that Deputy Vourhees knew of the charges pending against Defendant [sic] or that Plaintiff was restrained, but that is not to state that Deputy Vourhees was subjectively aware of the risk to Plaintiff from another prisoner when he allegedly turned the key and opened the door.(ECF No. 29, PageID.161.) The Court disagrees and finds that Plaintiff has alleged sufficient facts in his proposed pleading to withstand a motion under Rule 12(b)(6).
With respect to Defendant Vourhees, Plaintiff alleges in his “Statement of Claim” that “Deputy Vourhees[,] who controlled the doors[,] was aware of me being there in the restraint chair [and] used his key to unlock the door[,] allowing prisoners who wanted revenge for my alleged involvement in the murder for which [I'm] currently serving time ....” (ECF No. 23, PageID.95.) Plaintiff further alleges, “Deputy Vourhees . . . fail[ed] to protect me from an assault by other prisoners even [though] it was soo [sic] obvious to a lamens [sic] eye that I could not protect myself while bound by hands and feet to a chair with no possible way to run.” (Id.) Plaintiff also attaches to his proposed amended complaint an “Affidavit of Truth,” in which he sets forth additional factual allegations, including:
Deputy Vourhees had controll [sic] of the door to let prisoners in the area where I was being held bound hand and feet to a restraint chair, he was fully aware I was there, and was fully aware of my high profile murder case because we had talked about it in the past. Deputy Vourhees opened the door by placing his keys in the door allowing prisoners to assault me . . . failing to protect me . . . 8th Amendment violation to the United States Constitution.(ECF No. 23, PageID.97.)
When reviewing motions under Rule 12(b)(6), the complaint is viewed in the light most favorable to the plaintiff, the allegations in the complaint are accepted as true, and all reasonable inferences are drawn in favor of the plaintiffs. Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). “To survive a motion to dismiss, a complaint must contain factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Drawing all reasonable inferences in Plaintiff's favor, and accepting his allegations as true, the Court does not agree with Defendants that these facts fail to allege a claim for failure to protect under the Eighth Amendment.Plaintiff alleges that Defendant Vourhees knowingly unlocked a door to allow access to Plaintiff by other inmates while he was restrained, and that Defendant Vourhees knew that Plaintiff was involved in a high profile murder case. A prisoner official may not “escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault.” Farmer v. Brennan, 511 U.S. 825, 843 (1994). Rather, “[t]he question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to his future health,' and it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.” Id. (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). Knowingly unlocking a door and providing access to an inmate who is fully restrained and unable to defend himself, especially if that prisoner was convicted just that day of a high-profile crime, could, if factually developed, sustain a failure to protect claim.
The Court emphasizes that analyzing whether a claim is futile, and whether it could with stand a motion under Rule 12(b)(6) requires the Court to “construe the complaint in the light most favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). A different standard applies under Rule 56, and yet a high standard will apply at any trial.
The Court thus finds that Plaintiff's proposed amended complaint could withstand a Rule 12(b)(6) motion and is therefore not futile. See Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420-21 (6th Cir. 2000) (“The test for futility . . . does not depend on whether the proposed amendment could potentially be dismissed on a motion for summary judgment; instead, a proposed amendment is futile only if it could not withstand a Rule 12(b)(6) motion to dismiss.”).
c. Excessive Force Claims
Defendants also argue that Plaintiff has failed to allege sufficient facts to assert an excessive force claim against Defendant Vourhees, but it does not appear from the amended complaint that Plaintiff is attempting such a claim against Defendant Vourhees. Rather, a fair reading of the amended complaint is that Plaintiff asserts excessive force claims against the three John Doe Defendants.
The only arguments Defendants set forth to oppose the amendment are based on futility, and there is no assertion that Plaintiff's motion should be denied based on any of the other Foman factors - “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman, 371 U.S. at 182. Indeed, Plaintiff's motion to amend was brought promptly, and just one week too late for an amendment of right. See Continental Bldg. Sys., LLC v. 31-W Insulation Co., No. 2:16-CV-811, 2017 WL 3575622, at *1 (S.D. Ohio Jan. 10, 2017) (allowing amendment where the plaintiff filed a motion to amend seven days after the time period prescribed in Rule 15(a)(1)(B)). With no remaining arguments to oppose amendment, the Court finds that Plaintiff, in filing the instant motion, has not acted with undue delay, in bad faith, or for dilatory purposes and thus Plaintiff's motion to amend is GRANTED and the proposed amended complaint (ECF No. 23) is DEEMED the operative pleading.
2. Defendants' pending motions to dismiss (ECF Nos. 13 & 17)
Because they were based on the original complaint, which has now been supplanted by the First Amended Complaint, (ECF No. 23), the Court should DENY AS MOOT Defendant Genesee County Jail's motion to dismiss (ECF No. 13) and Defendant Vourhees's motion to dismiss (ECF No. 17).
3. Plaintiff's motion for appointment of counsel (ECF No. 24)
Plaintiff has also asked for appointment of counsel to help him navigate this litigation and particularly trial. (ECF No. 24, PageID.100.) He contends that he is unable to afford counsel and has made repeated efforts to find a lawyer but has not been successful. (Id.) Although it is highly unusual for a defendant to oppose such a request, Defendants filed a response in opposition to the motion, asserting that “Plaintiff must be held accountable for his bad faith attempt to re-file in the Western District after his initial case against Genesee County Jail was dismissed in the Eastern District.” (ECF No. 27, PageID.119.) Indeed, Defendants contend that no counsel should be appointed because Plaintiff brought this action in “bad faith” only “after his original filing in the Eastern District” was dismissed (ECF No. 27, PageID.123), thus implying that Plaintiff purposefully filed in a different district in an attempt to avoid Judge Ludington's ruling. However, contrary to Defendants' argument, Plaintiff brought both lawsuits in the Western District and both lawsuits were transferred to the Eastern District. This pattern is more likely due to a pro se Plaintiff's mistake rather than a deliberate attempt at subterfuge. Moreover, Judge Ludington dismissed this action without prejudice, and in the second lawsuit, Plaintiff added additional defendants besides the Genesee County Jail and, in his proposed amended complaint, Plaintiff has dropped Genesee County Jail altogether. The Court is not persuaded that Plaintiff's actions amount to “bad faith,” and rejects Defendants assertions to the contrary.
Nonetheless, the Court will deny Plaintiff's motion to appoint counsel at this juncture. The Court does not have the authority to appoint a private attorney for Plaintiff in this civil matter. Even if the circumstances of Plaintiff's case convinced the Court to engage in a search to find pro bono counsel, “[t]here is no right to recruitment of counsel in federal civil litigation, but a district court has discretion to recruit counsel under 28 U.S.C. § 1915(e)(1).” Dewitt v. Corizon, Inc., 760 F.3d 654, 657 (7th Cir. 2014) (emphasis added); see also Olson v. Morgan, 750 F.3d 708, 712 (7th Cir. 2014) (“Congress hasn't provided lawyers for indigent prisoners; instead it gave district courts discretion to ask lawyers to volunteer their services in some cases.”). The appointment of counsel in a civil case, therefore, “is a privilege and not a right.” Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987) (internal quotation and citation omitted).
The Supreme Court has held that there is a presumption that “an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.” Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 26-27 (1981). With respect to prisoner civil rights cases in particular, the Court of Appeals for the Sixth Circuit has held that “there is no right to counsel.... The appointment of counsel in a civil proceeding is justified only by exceptional circumstances.” Bennett v. Smith, 110 Fed.Appx. 633, 635 (6th Cir. 2004) (internal and external citations omitted). Accordingly, although the Court has the statutory authority to request counsel for pro se plaintiffs in civil cases under 28 U.S.C. § 1915(e)(1), the exercise of this authority is limited to exceptional situations.
In evaluating a matter for “exceptional circumstances,” a court should consider: (1) the probable merit of the claims, (2) the nature of the case, (3) the complexity of the legal and factual issues raised, and (4) the ability of the litigant to represent him or herself. Lince v. Youngert, 136 Fed.Appx. 779, 782 (6th Cir. 2005); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993); Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985). The Court has considered these factors here and denies the motion.
Plaintiff seeks recruitment of counsel because “his imprisonment will greatly limit his ability to litigate,” and he will need assistance at trial. (ECF No. 24, PageID.100) There is no right to counsel in civil cases filed by indigent pro se prisoners. Bennett, 110 Fed.Appx. at 635 (citing Glover v. Johnson, 75 F.3d 264, 268 (6th Cir. 1996)). Many people are unable to afford counsel, although some are able to gain the interest of a contingent fee lawyer or even an attorney who is willing to go forward in the hope that attorney's fees will later be rewarded. In any case, and unfortunately, indigency is widespread among the prison population and is certainly not an “exceptional circumstance. Thus far, Plaintiff has appeared able to file motions, make rational arguments, and even achieve some success on his motions. (See supra.) Even if Plaintiff is arguing that his incarceration makes discovery more difficult to obtain, the discovery rules make no distinction between what is available to someone who is in jail or prison or someone who is at complete liberty; nor do they substantively distinguish between represented and in pro per parties. Moreover, difficulties in conducting discovery exist in most prisoner or detainee civil rights cases and do not constitute exceptional circumstances justifying appointment of counsel. Whorton v. Deangelo, No. 2111046, 2022 U.S. Dist. LEXIS 110548, at *4 (E.D. Mich. June 22, 2022) (citing Lafountain v. Martin, 2009 U.S. Dist. LEXIS 92369, 2009 WL 3255099, at *1 (W.D. Mich. Oct. 5, 2009)).
Finally, at this stage in the litigation, it is too early for the Court to judge the merits of the claim. Due to the limited number of pro bono counsel who are willing and available and the large number of prisoners who would like the help of volunteer attorney services, the Court generally waits to seek pro bono counsel until the case survives dispositive motion practice. Thus, absent exceptional circumstances, seeking pro bono counsel at this stage of litigation would be premature. Plaintiff's motion to appoint counsel (ECF No. 24) is thus DENIED.
D. Conclusion
Plaintiff's motion for leave to amend (ECF No. 22) is GRANTED and his proposed amended complaint (ECF No. 23) is DEEMED his First Amended Complaint and the operative pleading in this case.
In light of that ruling, the Court should DENY AS MOOT Defendants' motions to dismiss the original pleading (ECF No. 13 & 17).
Finally, Plaintiff's motion to appoint counsel (ECF No. 24) is DENIED.
III. PROCEDURE ON OBJECTIONS
A. Report and Recommendation
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 144 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 508 (6th Cir. 1991). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” and “Objection No. 2,” etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.
B. Order on motion to amend and motion to appoint counsel
The attention of the parties is drawn to Fed.R.Civ.P. 72(a), which provides a period of fourteen (14) days after being served with a copy of this order within which to file objections for consideration by the district judge under 28 U.S.C. § 636(b)(1).
IT IS SO ORDERED.