United States District Court, W.D. Tennessee, Western Division
ORDER TO MODIFY THE DOCKET, DENYING MOTIONS TO AMEND AND MOTION TO APPOINT COUNSEL, GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
JAMES D. TODD, District Judge.
The Plaintiff, Brandon Christopher Gladney, who is currently incarcerated at the Shelby County Correctional Center in Memphis, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 on August 26, 2013, concerning his previous confinement at the Shelby County Criminal Justice Complex ("Jail"). (ECF No. 1.) The Court granted leave to proceed in forma pauperis and assessed the civil filing fee pursuant to 28 U.S.C. §§ 1915(a)-(b). (ECF No. 8.) On October 28, 2013, the Court dismissed portions of the complaint and directed that process be issued for five individual Defendants, Toriano Davis, Robert Hilson, Takietha Tuggle, Shauntia Brown, and Santana Leverson. (ECF No. 15.)
Before the Court is the Defendants' motion for summary judgment. (ECF Nos. 35 & 36.) Plaintiff did not respond to that motion and did not seek an extension of time in which to do so. On May 2, 2014, Plaintiff filed a motion for appointment of counsel. (ECF No. 50.) A motion to amend the complaint was filed on May 20, 2014, accompanied by a proposed amendment. (ECF No. 53.) Plaintiff filed a second proposed amended complaint on June 6, 2014, which the Court construes as a separate motion to amend. (ECF No. 57.)
Pursuant to 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." However, "[t]he appointment of counsel in a civil proceeding is not a constitutional right." Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) ("[T]he plaintiffs were not entitled to have counsel appointed because this is a civil lawsuit."); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (no constitutional right to counsel in a civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) ("There is no constitutional or... statutory right to counsel in federal civil cases...."). Appointment of counsel is "a privilege that is justified only by exceptional circumstances." Lavado, 992 F.2d at 606 (internal quotation marks & citation omitted). "In determining whether exceptional circumstances' exist, courts have examined the type of case and the abilities of the plaintiff to represent himself. This generally involves a determination of the complexity of the factual and legal issues involved." Id. at 606 (internal quotation marks & citations omitted). Appointment of counsel is not appropriate when a pro se litigant's claims are frivolous or when his chances of success are extremely slim. Id. (citing Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985)); see also Cleary v. Mukasey, 307 F.Appx. 963, 965 (6th Cir. 2009) (same).
Plaintiff has not satisfied his burden of demonstrating that the Court should exercise its burden to appoint counsel in this case. Nothing in Plaintiff's submission distinguishes this case from numerous other cases that are litigated by pro se prisoners without the assistance of counsel. The motion for appointment of counsel is DENIED.
In the order of partial dismissal, the Court summarized Plaintiff's allegations:
The complaint alleges that, on June 21, 2013, Defendant Hilson beat Plaintiff inside a storage closet in the administrative segregation area of the Jail. On August 1, 2013, while Plaintiff was in the shower, he was ordered to get on his knees and put his hands behind his head. Although Plaintiff complied with that order, Defendant Davis allegedly tackled Plaintiff while he was on his knees. Defendant Brown was present and filmed the incident. (Compl., [ECF No.] 1 at 2.) As a result of the assault on August 1, 2013, Plaintiff received nine stitches under his left eye. ( Id. at 3.) Defendant Tuggle was allegedly present during both incidents. It is unclear from the complaint itself whether Plaintiff contends that Defendants Brown, Hilson, and Leverson were present during one or both incidents. ( Id. ) However, in copies of Plaintiff's grievances, which are attached to the complaint, he indicated that Leverson and Brown also participated in the June 21, 2013, assault ([ECF No.] 1-1 at 3), and that Davis and "two other DRT officers" participated in the August 1, 2013, incident ( id. at 3-4).
(ECF No. 15 at 2.)
In the motion to amend filed May 20, 2014 (ECF No. 53), Plaintiff sought to add two Defendants, Chief Jailer Robert Moore and Chief of Security McGhee. However, other than a brief statement regarding their positions and duties, there are no factual allegations whatsoever against either of these individuals in the proposed amended complaint. Therefore, it appears that Plaintiff is attempting to sue Moore and McGhee solely because of their supervisory positions.
Under 42 U.S.C. § 1983, "[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. " Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); see also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Thus, "a plaintiff must plead that each Government-official defendant, through the official's own official actions, violated the Constitution." Iqbal, 556 U.S. at 676.
There must be a showing that the supervisor encouraged the specific instance of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinates.
Bellamy, 729 F.2d at 421 (citation omitted). A supervisory official who is aware of the unconstitutional conduct of his or her subordinates, but fails to act, generally cannot be held liable in his or her individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008); Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 727-28 (6th Cir. 1996). Plaintiff does not allege that either Moore or McGhee had any personal involvement at issue. Therefore, the motion for leave to amend is DENIED.
In the proposed amendment docketed June 6, 2014, Plaintiff again seeks to include Moore and McGhee as Defendants because of their supervisory positions. Plaintiff also seeks to re-allege his claims against Officers J. Robertson, K. Williams, and Jessie Griffin and to add as new Defendants Officer C. Cleaves, Officer L. Sheffield, and Correct Care Solutions, LLC ("CCS"). Plaintiff alleges that during the incident that occurred on August 1, 2013, Cleaves tackled him, Sheffield was responsible for putting on the leg irons and controlling his lower extremities, and Robertson was responsible for putting on the handcuffs and controlling his upper extremities. (ECF No. 57 at 2.) Defendants Leverson and Davis were present and could have attempted to prevent the incident before Plaintiff was tackled by Cleaves. Defendant Tuggle was present before and after the takedown, and Defendant Hilson was present when the takedown occurred in order to deploy chemical agents. With regard to CCS, ...