Wallace v. McCauley et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENNIS WALLACE,
Plaintiff, 	Case No. 2:22-cv-12530
v. 	Honorable Susan K. DeClercq
United States District Judge
LAURA BROWN,
Defendant.
___________________________________/
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO
APPOINT PRO BONO COUNSEL (ECF No. 78)
In October 2022, Plaintiff Dennis Wallace—currently incarcerated at Saginaw
Correctional Facility—sued Michigan Department of Corrections (MDOC) Officer
Wright1 and three MDOC healthcare providers, Susan McCauley, Curtina Jones, and
Laura Brown. ECF No. 1. Wallace alleged that Defendants violated his civil rights
by failing to properly address his medical needs. Id. The following month, the case
was referred to Magistrate Judge Curtis Ivy, Jr. for full pretrial. ECF No. 9.
In September 2023, Jones, McCauley, and Wright moved for summary
judgment. ECF No. 48. And in November 2023, Brown moved for summary
judgment. 	ECF 	No. 	46. 	In 	April 	2024, 	Judge 	Ivy 	issued 	a 	Report 	and
Recommendation recommending that Jones, McCauley, and Wright’s motion be
1 No first name was provided in the record.
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granted in full, but that Brown’s motion be granted in part. ECF No. 59. Both
Wallace and Brown filed objections, ECF Nos. 60; 61, but this Court overruled the
objections and adopted the Report and Recommendation in full. ECF No. 63. Thus,
Wallace’s only remaining claim is his Eighth Amendment deliberate indifference
claim against Brown for allegedly interfering with his pain medications. Id. at
PageID.802.
Brown then brought a certified interlocutory appeal of the summary judgment
order. ECF Nos. 65–68. Wallace moved to dismiss the appeal, arguing lack of
jurisdiction because Brown failed to “petition[] for permission to appeal within 10
days of the certification,” pursuant to 28 U.S.C. § 1292. ECF No. 76 at PageID.854.
In March 2025, the Sixth Circuit granted Wallace’s motion, ECF No. 77, and
dismissed Brown’s appeal because it lacked jurisdiction, ECF No. 76 at PageID.855.
Proceeding pro se, Wallace now moves to have pro bono counsel appointed for him
to pursue his surviving Eighth Amendment deliberate-indifference claim against
Brown. ECF No. 78.
District courts may “request an attorney to represent any person unable to
afford counsel” in a civil case, but need not appoint one. 28 U.S.C. § 1915(e)(1).
Indeed, “[a]ppointment of counsel in a civil case is not a constitutional right. It is a
privilege that is justified only by exceptional circumstances.” Lavado v. Keohane,
992 F.2d 601, 605–06 (6th Cir. 1993) (internal citations and quotations omitted). In
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evaluating whether there are “exceptional circumstances,” courts should consider:
(1) the probable merits 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. See id. at 605–06; see also Lince v. Youngert, 136 F. App’x 779, 782
(6th Cir. 2005); Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003).
Construed differently, appointment of pro bono counsel is “warranted only if,
given the difficulty of the case and the party’s ability, the party (1) could not obtain
justice without an attorney, (2) could not independently obtain a lawyer, and (3)
would have a reasonable chance of winning with the assistance of counsel.” Key v.
City of Detroit, 738 F. Supp. 3d 917, 919 (E.D. Mich. 2024). This is because
appointing “pro bono counsel is a discretion reserved for times when justice and due
process demand it.” Id. Additionally, “[i]t has been the general practice of courts in
this district and the Sixth Circuit to appoint counsel only after the prisoner has
survived dispositive motion practice.” Platte v. DeFeyter, No. 23-CV-10640, 2023
WL 4181263 at *5 (E.D. Mich. June 26, 2023) (collecting cases).
In his motion, Wallace argues that appointment of counsel is necessary
because his claim has merit—as demonstrated by surviving a motion for summary
judgment—and because he lacks the resources and legal expertise to handle an
Eighth Amendment claim at trial. ECF No. 78 at PageID.858–60. He adds that his
appellate counsel, Northwestern Pritzker School of Law’s Federal Appellate Practice
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Clinic, is unable to represent him in district court. Id. at PageID.858.
Having reviewed Wallace’s complaint and subsequent filings, and considered
the relevant factors, the Court finds that Wallace’s claim warrants an order
“request[ing] an attorney” to represent him under 28 U.S.C. § 1915(e). See Platte,
2023 WL 4181263 at *5. Indeed, Wallace’s claim necessitates counsel to help
navigate a trial with experts. See Key, 738 F. Supp. 3d at 919 (finding that
appointment of pro bono counsel was appropriate for a plaintiff without a lawyer
and for whom the next step was a jury trial). Furthermore, Wallace’s claim survived
summary judgment, which suggests “a reasonable chance of success on the merits if
properly litigated” with the benefit of counsel. See id. Thus, this Court will attempt
to appoint pro bono counsel for Wallace, staying the case for up to 90 days to
facilitate the process. If unsuccessful, then the stay will be lifted and Wallace must
represent himself during trial. See id.
Accordingly, it is ORDERED that Defendant’s Motion to Appoint Pro Bono
Counsel, ECF No. 78, is GRANTED. Further, it is ORDERED that this matter is
stayed until either (1) pro bono counsel files an appearance or (2) 90 days from the
date of this order, whichever is earlier.
This is not a final order and does not close the above-captioned case.
/s/Susan K. DeClercq
SUSAN K. DeCLERCQ
United States District Judge
Dated: October 20, 2025
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