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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

EMMETT BUFFMAN, 

 Plaintiff, 

v. 

MISS MOODY, et al., 

 Defendants. 

 

Case No. 5:14-cv-12577 

Judge Judith E. Levy 

Magistrate Judge Anthony P. Patti

___________________________________/ 

OPINION AND ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S 

AUGUST 28, 2014 REQUEST FOR APPOINTMENT OF COUNSEL OR 

SUBMISSION TO PRO BONO COMMITTEE (DE 12) and REQUIRING 

PLAINTIFF TO SHOW CAUSE WHY HIS CASE AGAINST DEFENDANT 

MOODY SHOULD NOT BE DISMISSED 

I. OPINION 

A. Defendant Moody of FCI Milan is the only remaining Defendant. 

On June 26, 2014, while incarcerated at Federal Correctional Institution 

(FCI) Milan, Emmett Buffman (19368-424) filed a lawsuit pursuant to Bivens v. 

Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 

(1971) against five (5) defendants: Moody, McClatchey, and Terris (each of FCI 

Milan), as well as BOP Director Samuels and Attorney General Eric Holder. 

Plaintiff is proceeding in forma pauperis. (DE 2, 6, 7 and 8.) 

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On July 31, 2014, Judge Levy entered an opinion and order of partial 

summary dismissal as to Plaintiff’s claims against four (4) of the defendants 

(McClatchey, Terris, Samuel, and Holder) and directed service upon the remaining 

defendant (Moody). (DE 9.) Defendant Moody has yet to appear, and there is no 

executed “waiver of the service of summons” or other evidence of service on the 

docket. To the contrary, the docket demonstrates a lack of successful service. (See, 

i.e., DE 14.)1

 Attempts at service upon Defendant Moody have not been without 

effort by the Court and the U.S. Marshal. For example, on August 5, 2014, the 

U.S. Marshal was provided with papers for service upon Moody. (DE 11.) The 

waiver was returned to sender on the basis that Moody was not at FCI Milan. (DE 

14.)2

 

B. Plaintiff’s Complaint seeks injunctive relief against an FCI Milan 

Defendant, but Plaintiff has transferred to FCI Elkton. 

 If the situs of Plaintiff’s incarceration had remained static, this Court would 

continue to oversee the attempts at service upon Defendant Moody. However, 

                                                            

1 Notwithstanding this, in his August 28, 2014 filing, Plaintiff claims that the U.S. 

Marshal served Moody, allegedly prompting FCI Milan Warden J. A. Terris to 

force Unit Manager Moody “to retire early to save her pension, and several weeks 

ago she officially retired.” DE 12 at 1 ¶ 1. 

2 On October 21, 2014, an order was entered directing service without prepayment 

of costs and directing the MDOC to provide certain information. (DE 15.) 

Therefore, it makes sense that the MDOC sent us a letter stating that Moody is not 

a current or past employee of the MDOC. (DE 16.) 

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Plaintiff appears to seek only injunctive relief, in the form of “IMMEDIATE 

PLACEMENT IN AN ALTERNATIVE UNIT WITH NO OVERSIGHT BY 

MISS MOODY OR MR. MCCLATCHEY” (emphasis in original), a cease and 

desist order relating to the same, as well as “further and other relief that this 

Honorable Court deems just and necessary[,]” DE 1 at 7. There is no request for 

legal remedies, only equitable ones. The Court must, therefore, consider whether 

Plaintiff’s claims against Moody have been rendered moot by Plaintiff’s transfer 

from FCI Milan. This is so, because claims for declaratory and injunctive relief 

are often mooted by prisoner’s transfer from the custody of the institution against 

whom he or she seeks the injunctive relief. See, i.e., Kensu v. Haigh, 87 F.3d 172, 

175 (6th Cir. 1996) (“to the extent Kensu seeks declaratory and injunctive relief his 

claims are now moot as he is no longer confined to the institution that searched his 

mail.”). 

Here, the facts underlying Plaintiff’s claims against Moody relate to the 

2013 and 2014 timeframe, while Plaintiff was incarcerated at FCI Milan. (See, i.e., 

DE 1 ¶¶ 2, 6, 7.)3

 Moreover, even though Plaintiff asks for relief continuing 

                                                            

3 Plaintiff’s June 26, 2014 initial filing, which is titled an “emergency motion for 

emergency restraining order to have Plaintiff removed from any Unit Team 

inclusive of Miss Moody or Mr. McClatchey,” refers to a civil rights complaint 

submitted on June 9, 2014. (DE 1 ¶ 1.) However, the only other case attributable 

to Mr. Buffman is Buffman v. United States of America, Case No. 5:13-cv-14024-

JEL-MKM (E.D. Mich.). Therefore, the Court treats Plaintiff’s June 26, 2014 

initial filing as his complaint.  

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throughout his confinement with the FBOP, Plaintiff’s prayer seems to be limited 

to injunctive relief. (DE 1 at 7.) Additionally, on or about June 15, 2015, Buffman 

was transferred to FCI Elkton in Lisbon, Ohio. (DE 18.) Thus, it appears as if 

Plaintiff’s claims for injunctive relief against FCI Milan Defendant Moody may 

have been rendered moot by Plaintiff’s transfer from FCI Milan, not to mention 

Plaintiff’s allegation that Ms. Moody has retired. (DE 12 at 1 ¶ 1.) 

C. Plaintiff also seeks pro bono counsel. 

On August 28, 2014, Plaintiff filed a request for appointment of counsel or 

submission to pro bono committee pursuant to 18 U.S.C. § 3006A (“Adequate 

representation of defendants”). (DE 12.) Although Plaintiff styles his motion as a 

“request for appointment of counsel or submission to pro bono committee,” the 

Court does not have the authority to appoint a private attorney for Plaintiff in this 

civil matter. 

Proceedings in forma pauperis are governed by 28 U.S.C. § 1915, which 

provides that “[t]he court may request an attorney to represent any person unable to 

afford counsel.” 28 U.S.C. § 1915(e)(1) (emphasis added). However, even if the 

circumstances of Plaintiff’s case convinced the Court to engage in such a search, 

“[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); see also Olson v. Morgan, 750 

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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.”). 

 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 F. App’x 633, 635 (6th Cir. 2004). The 

Court will consider whether such “exceptional circumstances” exist should 

Plaintiff: successfully argue that his case against Defendant Moody was not 

mooted by Plaintiff’s transfer from FCI Milan; prevail in dispositive motion 

practice; and, renew his motion for counsel. 

II. ORDER 

 Accordingly, Plaintiff’s August 28, 2014 request for appointment of 

counsel or submission to pro bono committee (DE 12) is DENIED WITHOUT 

PREJUDICE. Plaintiff may petition the Court for the recruitment of pro bono

counsel if this case survives dispositive motion practice, proceeds to trial, or if 

other circumstances demonstrate such a need in the future. 

 Additionally, within twenty-one (21) days, Plaintiff shall SHOW CAUSE

in writing why his case against FCI Milan Defendant Miss Moody should not be 

dismissed as moot. 

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IT IS SO ORDERED.

Dated: November 13, 2015 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

I hereby certify that a copy of the foregoing document was sent to parties of record 

on November 13, 2015, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

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