                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 09a0387n.06

                                   Nos. 08-1222, 08-1273, 08-1278

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


MICHAEL DAVID GARRISON; ERIC BOYLAN;                        )
ROBERT WALKER,                                              )
                                                                                 FILED
                                                            )
                                                                             May 28, 2009
                                                                        LEONARD GREEN, Clerk
        Plaintiffs-Appellants,                              )
                                                            )
and                                                         )
                                                            )
JASON DIXON; GREGORY HULL,                                  )         ON APPEAL FROM THE
                                                            )         UNITED STATES DISTRICT
        Plaintiffs,                                         )         COURT FOR THE WESTERN
                                                            )         DISTRICT OF MICHIGAN
                v.                                          )
                                                            )
MICHIGAN DEPARTMENT OF CORRECTIONS;                         )
PATRICIA CARUSO, MDOC Director, in her                      )
individual and official capacities,                         )
                                                            )
        Defendants-Appellees.




BEFORE: BOGGS, Chief Judge; and GILMAN and ROGERS, Circuit Judges.

        ROGERS, Circuit Judge. Michael Garrison, Eric Boylan, and Robert Walker appeal from

an order dismissing their civil rights complaint. Garrison and four other Michigan prisoners filed

a joint pro se action in district court alleging that prison officials had placed unnecessary restrictions

on the prisoners’ religious practice in violation of the Religious Land Use and Institutionalized

Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1–cc-5. The prisoners requested, and were denied,

appointed counsel. The district court later discovered that Garrison was filing papers that had been
Nos. 08-1222, 08-1273, 08-1278
Garrison v. Mich. Dep’t of Corr.


previously signed in blank by his co-plaintiffs. The co-plaintiffs left the signed, blank papers for

Garrison to use in conducting the litigation. The district court regarded the use of papers signed in

blank as fraud. The court dismissed the action without prejudice and applied various sanctions.

Because counsel will only be appointed in a civil case in exceptional circumstances, the district court

acted within its discretion in denying appointment of counsel. The district court also acted within

its discretion when it dismissed the case without prejudice due to the improper nature of some of the

filings. However, we vacate the dismissal order to the extent that it applies further sanctions because

the record does not sufficiently indicate that Garrison and his co-plaintiffs acted in bad faith.

                                                  I.

       Garrison and the other appellants in this consolidated case are prisoners in the Michigan

Department of Corrections (MDOC) prison system. In December 2006, the appellants and two

prisoners who are no longer parties to this litigation filed a complaint against MDOC and its director

Patricia Caruso. The complaint alleged numerous violations of RLUIPA. The district court allowed

the plaintiffs to proceed in forma pauperis, paying the $350 filing fee in installments. The court

dismissed one plaintiff without prejudice for failing to make his initial payment.

       Garrison and his co-plaintiffs alleged in their complaint that MDOC was violating RLUIPA

by placing restrictions, without any substantial or compelling reason for doing so, on their ability to

follow the Native American Traditional Ways religion. The plaintiffs alleged, among other things,

that MDOC would not allow them to possess certain innocuous religious objects and herbs and that

MDOC prevented them from engaging in religious gatherings and ceremonies except in certain


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Garrison v. Mich. Dep’t of Corr.


limited circumstances.

        The plaintiffs moved to certify a class of all similarly situated followers of their religion. The

motion raised the possibility that the court would appoint counsel and cited precedent in which pro

se litigants were allowed to proceed as class representatives. The court denied the motion, finding

that pro se litigants may not act as class representatives. The court did not address appointment of

counsel. The plaintiffs then filed a motion explicitly requesting appointed counsel, noting that their

motion for class certification had been denied because of their lack of counsel. The plaintiffs cited

several factors to support their request, including the merit of their case, the complexity of the issues,

their indigence, the fact that three out of four of them were uneducated, and the fact that one plaintiff

had already been transferred to another facility, thus making communication about their common

suit difficult. The court, however, determined that appointment of counsel was not necessary to a

proper presentation of plaintiffs’ case.

        On the same day that the plaintiffs moved to certify a class, the court ordered the clerk to

serve the plaintiffs’ complaint on MDOC. Having reviewed the complaint to determine that it was

not frivolous, malicious, or subject to dismissal for failure to state a claim, the court ordered MDOC

to reply. Both sides filed various motions and responses, and in December 2007 each side filed a

motion for summary judgment.

        Plaintiff Dixon absconded from parole in October 2007. MDOC learned this fact shortly

after the motions for summary judgment were filed and moved to strike the plaintiffs’ motion.

MDOC argued that Federal Rule of Civil Procedure 11 requires pro se plaintiffs to sign their motions


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Garrison v. Mich. Dep’t of Corr.


and that Dixon’s purported signature on the plaintiffs’ December 26, 2007, motion must have been

forged. Garrison responded to MDOC’s motion by explaining that, after plaintiffs learned that

Dixon would be transferred to another facility, plaintiffs other than Garrison signed several papers

in blank and authorized Garrison to use the papers to file all necessary documents with the court.

The response gave two reasons: first, plaintiffs anticipated that retaliatory transfers would result in

all four plaintiffs’ being housed in separate facilities, making it impossible to comply with filing

deadlines, and second, Garrison was the only one of the four with sufficient legal knowledge to

pursue the claim.

        The district court regarded the use of documents signed in blank as a “ruse” and a “brazen

fraud on the court.” Garrison v. Mich. Dep’t of Corr., No. 1:06-cv-869, 2008 WL 351652, at *1

(W.D. Mich. Feb. 7, 2008). The court stated that federal law prohibited Garrison from representing

the other plaintiffs “either directly or through the subterfuge of presigned papers,” but instead

required plaintiffs either to proceed pro se or through licensed counsel. Id. The court also stated that

Garrison was on notice that he could not represent the others, because the court wrote in its denial

of class certification that a pro se litigant may not act in a representative capacity. Id. Recognizing

that Garrison, Boylan, and Walker were all now housed in separate facilities and that Dixon was no

longer in the prison system at all, the court determined that it must dismiss Boylan, Walker, and

Dixon’s claims without prejudice, because the court was unable to tell which claims represented the

voluntary submissions of those plaintiffs and which were the submissions of Garrison alone. Id. at

*2. The court ordered that the plaintiffs, as a sanction for their conduct, would not receive any credit


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Garrison v. Mich. Dep’t of Corr.


in future actions for fees already paid in conjunction with the dismissed action. Id. at *2 n.1.

       The court also dismissed Garrison’s claim without prejudice as a sanction for fraud. Id. at

*2. In addition, the court issued a permanent injunction preventing Garrison from proceeding as a

co-plaintiff or intervening in any case in that court. Id. The court required that Garrison disclose

on the first page of any subsequent complaint whether he was reasserting any of the twenty-six

claims from the instant case. Id. The court also prohibited Garrison from proceeding in forma

pauperis in any future action that reasserted any of the twenty-six claims. Id. All pending motions

were dismissed as moot. Id.

       Garrison, Boylan, and Walker appeal the denial of appointed counsel, the dismissal of their

case, and the other sanctions. MDOC declined to file an opposing brief.

                                                 II.

       The district court did not abuse its discretion by denying Garrison and his co-plaintiffs’

motion to appoint counsel or by dismissing the case without prejudice. However, we vacate the

other sanctions imposed upon the plaintiffs.

                                                 A.

       Although this case arguably presented an appropriate situation for appointment of counsel,

the trial court did not abuse its discretion in declining to do so. Garrison and his co-plaintiffs

submitted their request for counsel after one of their number was transferred to a different facility.

Although continuing their joint litigation under those circumstances presented difficulties, Garrison

and his co-plaintiffs had no right to appointed counsel in this civil case. See Reneer v. Sewell, 975


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Garrison v. Mich. Dep’t of Corr.


F.2d 258, 261 (6th Cir. 1992). Any appointment of counsel was at the discretion of the district court.

Id. When considering whether to appoint counsel, a court should consider the type of the case, the

complexity of the issues, and the litigants’ ability to represent themselves. Lavado v. Keohane, 992

F.2d 601, 606 (6th Cir. 1993). The precedent of this circuit supports appointment of counsel for civil

litigants only in exceptional circumstances. Id. A district court’s decision not to appoint counsel

is not reversable unless it results in “fundamental unfairness impinging on due process rights.”

Reneer, 975 F.2d at 261. The denial of counsel here does not involve the level of injustice required

for reversal.

                                                 B.

        Dismissal without prejudice for the reasons given by the district court also was not an abuse

of discretion. As the district court noted, the plaintiffs’ use of documents signed in blank prevents

the court from determining whether all the plaintiffs subscribed to a particular filing or whether

Garrison acted on his own authority. The fact that Garrison filed documents after plaintiff Dixon

left the prison system demonstrates that he was not merely assisting his co-plaintiffs pro se but

instead was acting at his own discretion on their behalf. While his co-plaintiffs may have authorized

these actions, that authorization was not proper outside of an actual attorney-client relationship.

Twenty-eight U.S.C. § 1654 allows parties to plead their own cases or to act through counsel.

Providing documents signed in blank to an unlicensed representative improperly circumvents this

requirement, although plaintiffs may sign documents that have been prepared by another inmate.

                                                 C.


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Garrison v. Mich. Dep’t of Corr.


        The district court, however, imposed overly burdensome hurdles to future litigation. Section

1654’s proscription of unlicensed practice notwithstanding, precedent supports limited inmate-to-

inmate legal assistance. While assistance does not extend to representation of other inmates in court,

the authority which the district court cited for this limit consisted of cases involving pro se litigation

outside the prison context, see Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007), and

unrepresented inmate litigants serving as class representatives in class action lawsuits, see Ziegler

v. Michigan, 59 F. App’x 622, 624 (6th Cir. 2003). This authority fails to address the specific issues

raised by the present situation.

        Because of the particular difficulties that inmates face in obtaining the assistance of counsel,

the case law addressing lay legal assistance in the prison context generally supports the practice. The

Supreme Court has held that “unless and until the State provides some reasonable alternative to

assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a

regulation . . . barring inmates from furnishing such assistance to other prisoners.” Johnson v. Avery,

393 U.S. 483, 490 (1969). The Court reasoned that “if such prisoners cannot have the assistance of

a ‘jailhouse lawyer,’ their possibly valid constitutional claims will never be heard in any court.” Id.

at 487 (quoting the district court’s findings). Thus the Court grounded the right to receive assistance

from a jailhouse lawyer in the prisoner’s right of access to the courts.

        Courts have acted to curtail the actions of unscrupulous jailhouse lawyers whose services do

their fellow inmates more harm than good, but those limitations were responses to abuse, not

attempts to restrict unlicensed jailhouse practice generally. One district court in Missouri enjoined


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Garrison v. Mich. Dep’t of Corr.


an inmate from providing legal services after finding that he failed to follow court rules and

procedures, charged fees, used other inmates’ lawsuits primarily as vehicles to advance his own

grievances, filed actions of behalf of people who had not consented to his involvement, and buried

his clients’ straightforward claims in pages of otherwise frivolous material. Green v. Wyrick, 428

F. Supp. 732, 736-40 (W.D. Mo. 1976). This type of protection is not needed here. Although the

district court indicated that it acted to protect the rights of Garrison’s co-plaintiffs, the record

indicates that Garrison was advocating on behalf of his co-plaintiffs as well as himself, a service to

which they might not otherwise have had access.

        The district court had authority to regulate Garrison’s conduct of the jailhouse litigation and

to require that each plaintiff sign the filings after their preparation, but the record lacks evidence that

Garrison and his co-plaintiffs acted in bad faith or against the instructions of the court when they

used papers signed in blank. The record does not appear to indicate that Garrison and his co-

plaintiffs were affirmatively attempting to deceive the court. Rather, they may have been trying

                to adapt their litigation efforts to circumstances that might arise. Faced with the

possibility that they would not be able to file court documents in time if their amanuensis was in a

different prison (though they could have sought more time under the rules on account of that

circumstance), the plaintiffs devised what seemed to them (albeit wrongly) to be a reasonable

plan—signing a number of papers in blank and leaving them with the inmate who was functioning

as jailhouse counsel. Garrison and his co-plaintiffs also notified the court of the difficulties they

would face in carrying out their litigation after one of them was transferred. The court concluded


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Garrison v. Mich. Dep’t of Corr.


that this case did not present the exceptional circumstances that would justify appointment of

counsel, and the plaintiffs carried out their plan to use the papers they had signed while they were

all housed in the same facility. Absent some explicit notice to the parties that their actions were

improper, sanctions were not warranted to the extent they would unduly burden legitimate future

litigation.

        The district court based its decision to impose sanctions on the fact that the parties were on

notice that Garrison could not act as their representative, but such notice does not appear in the

record. The order to which the district court referred did not specifically prohibit Garrison from

representing his co-plaintiffs. The order addressed a different matter. Early in the case, the plaintiffs

moved to certify a class, and the court said that unrepresented prisoners such as themselves could

present only their own claims, not the claims of other prisoners who would make up the class. The

court said in that order:

        It is well established that a pro se litigant may represent himself on his own claims,
        but may not act in a representative capacity. 28 U.S.C. § 1654; see Cavanaugh ex
        rel. Cavanaugh v. Cardinal Local Sch. Dist., 409 F.3d 753, 755 (6th Cir. 2005). The
        Sixth Circuit has repeatedly held that pro se prisoner litigants are inadequate class
        representatives. See, e.g., Ziegler v. Michigan, 59 F. App’x 622, 624 (6th Cir. 2003);
        Palasty v. Hawk, 15 F. App’x 197, 200 (6th Cir. 2001); Marr v. Michigan, No.
        95-1794, 1996 WL 205582, at *1 (6th Cir. Apr. 25, 1996) (“[A]n imprisoned litigant
        who is not represented by counsel may not represent a class of inmates because the
        prisoner cannot adequately represent the interests of the class.”) (citing Oxendine v.
        Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)). Accordingly, plaintiffs’ motion for
        class certification [] is DENIED.

The court’s language and most of its cited authority refer to the propriety of pro se class litigation,

not to the contours and limitations of inmate-to-inmate legal assistance. The court’s statement did


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Garrison v. Mich. Dep’t of Corr.


not amount to an instruction that Garrison must limit his representation of the group, even if the first

sentence of the portion quoted above should have caused Garrison to infer that limitation. Indeed,

when MDOC accused the plaintiffs of submitting a forged signature, Garrison readily explained that

he was using documents signed in blank without appearing to realize that his actions might have

contravened an earlier court order.

        Neither Federal Rule of Civil Procedure 11 nor the district court’s inherent powers supports

the sanctions imposed by the district court to the extent that they unduly burden future litigation.

Federal Rule of Civil Procedure 11 requires that a pro se plaintiff sign any document submitted to

the court as certification that the document is not being submitted for an improper purpose and that

the document’s legal claims and factual allegations are warranted. The rule also empowers the court

to “impose an appropriate sanction” on a party who violates the rule. Fed. R. Civ. P. 11(c). “[T]he

central purpose of Rule 11 is to deter baseless filings in district court . . . .” Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 393 (1990). Because there is no indication that Garrison and his co-

plaintiffs submitted baseless claims to the court, Rule 11 does not justify the sanctions imposed here.

While the deference owed to the district court is high when it acts under its inherent powers, the

sanctions that the court imposed would require a finding of fraud or of willful disobedience of a

court order, see First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 516-17 (6th

Cir. 2002), neither of which is present here.

        Although the district court was justified in taking some corrective action when it learned that

Garrison had filed papers that his pro se co-plaintiffs had not specifically endorsed and that one of


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Garrison v. Mich. Dep’t of Corr.


the plaintiffs was no longer in the custody of the Michigan prison system, sanctions posing high

barriers to refiling were unwarranted. The district court aptly noted that the plaintiffs’ use of

documents signed in blank raised questions as to the legitimacy of the filings; however, the court’s

effort to maintain the integrity of the process need not erect barriers that dramatically decrease the

likelihood that the prisoners’ claims will ever be heard on the merits.

       Of course plaintiffs in this case are now clearly on notice, and any future use by them of

documents pre-signed in blank would be sanctionable.

                                                 III.

       For the foregoing reasons, the district court’s order denying appointment of counsel is

AFFIRMED. The district court’s order dismissing the case without prejudice is AFFIRMED. The

order to the extent that it imposes additional sanctions is VACATED.




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