Barr v. Tesla et al
| Tanya Barr |
| P. Tesla, Fernandez and Castelot |
| 3:2023cv00811 |
| June 20, 2023 |
| US District Court for the District of Connecticut |
| Kari A Dooley |
| Robert M Spector |
| Civil Rights: Other |
| 42 U.S.C. § 1983 Civil Rights Act |
| Defendant |
Docket Report
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| Filing 19 ANSWER to #1 Complaint with Affirmative Defenses with Jury Demand by Castelot, Fernandez, P. Tesla.(Buturla, Richard) |
| Filing 18 CERTIFICATE OF SERVICE by Tanya Barr re USM Service Papers Sent (Attachments: #1 certificate of service, #2 certificate of service)(Imbriani, Susan) |
| Filing 17 NOTICE of Appearance by Richard C Buturla on behalf of Castelot, P. Tesla (Buturla, Richard) |
| Filing 16 NOTICE of Appearance by Richard J. Buturla on behalf of Castelot, P. Tesla (Buturla, Richard) |
| Filing 15 NOTICE of Appearance by Richard C Buturla on behalf of Fernandez (Buturla, Richard) |
| Filing 14 NOTICE of Appearance by Richard J. Buturla on behalf of Fernandez (Buturla, Richard) |
Filing 13
ORDER denying #4 Motion to Appoint Counsel. A plaintiff in a civil case is not entitled to appointment of counsel on request and the Second Circuit repeatedly cautions against the routine appointment of counsel. See, e.g., Hendricks v. Coughlin, 114 F.3d 390, 393 (2d Cir. 1997); Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). Insofar as volunteer lawyer time is not always readily available, a plaintiff seeking appointment of counsel must show first that he "sought counsel and has been unable to obtain it." McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 123 (2d Cir. 1988). Once a plaintiff has made this showing, he must then demonstrate that his complaint passes the test of "likely merit." Cooper, 877 F.2d at 173. He must demonstrate that the claims in the complaint have a sufficient basis to justify appointing a volunteer lawyer to pursue them. Notably, "even where a claim is not frivolous, counsel is often unwarranted where the [plaintiffs] chances of success are extremely slim." Id. at 171. Here, Plaintiff has demonstrated that she has tried to secure counsel but has been unable to do so. She has further demonstrated that she cannot affford to retain counsel. However, at this nascent stage of the litigation the court cannot assess the "likely merit" of Plaintiff's claims. The Defendants have neither appeared nor answered the allegations. The motion is therefore denied without prejudice should the facts that develop through the litigation permit reassessment of this issue. So Ordered.Signed by Judge Kari A. Dooley on 7/7/23. (Dooley, Kari)
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| USM 285 forms together with Notice of Lawsuit/Request for Waiver of Service, Complaint, OSC, OPTD, Electronic Filing Order, Order granting IFP reviewed and emailed to the USM for service on all defendants. (Fanelle, N.) |
| Filing 12 USM 285 forms together with Notice of Lawsuit/Request for Waiver of Service of Summons and all instructions mailed to IFP plaintiff to complete and return to Clerk's office. (Imbriani, Susan) |
| Filing 11 NOTICE TO COUNSEL/SELF-REPRESENTED PARTIES : Counsel or self-represented parties initiating or removing this action are responsible for serving all parties with attached documents and copies of #2 MOTION for Leave to Proceed in forma pauperis filed by Tanya Barr, #8 Order on Pretrial Deadlines, #9 Electronic Filing Order, 5 Order Referring Case to Magistrate Judge, #3 Notice re: Disclosure Statement, 7 Initial Review Order - Prisoner, #10 Protective Order, #1 Complaint filed by Tanya Barr, #4 MOTION to Appoint Counsel filed by Tanya Barr, 6 Order on Motion for Leave to Proceed in forma pauperis Signed by Clerk on 6/29/23.(Pesta, J.) |
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Filing 7
INITIAL REVIEW ORDER: Plaintiff has plausibly alleged False Arrest, Malicious Prosecution and Excessive Force claims under the Fourth Amendment to the United States Constitution against Defendants Officer Fernandez and Officer Tesla and Sergeant Castelot. This determination is without prejudice to any defendant filing a motion to dismiss. The Clerk of Court is directed to prepare and mail a service packet to Plaintiff Tanya Barr. Signed by Judge Kari A. Dooley on 6/28/2023.(Gould, K.)
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Filing 6
ORDER granting #2 Motion for Leave to Proceed in forma pauperis. On June 20, 2023, the plaintiff, Tanya Barr, filed a Complaint against defendants Town of Stratford Police Officer Tesla, Police Officer Fernandez, and Sergeant Castelot, concerning an incident alleged to have occurred on or about October 22, 2021. (See Doc. No. 1). In connection with the filing of her Complaint, the plaintiff contemporaneously filed the instant Motion for Leave to Proceed in forma pauperis ("IFP"). For the reasons that follow, the Court GRANTS the plaintiff's Motion to Proceed IFP. As a general matter, applicants seeking IFP status are not required to "demonstrate absolute destitution." Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (per curiam). Rather, they must establish that they cannot afford to pay for both the necessities of life and the costs of litigation. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). "The decision of whether to grant an application to proceed [IFP] rests within the sound discretion of the court." Robert C. v. Kijakazi, No. 22-cv-120 (SRU), 2022 WL 2287600, at *1 (D. Conn. Feb. 10, 2022) (citing Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir. 1983)). Here, the financial affidavit provided by the plaintiff in support of the instant IFP application indicates that while she presently earns $600 in gross weekly wages, her monthly expenditures exceed that income. (See Doc. No. 2 at pp. 3-4). The plaintiff's financial affidavit further suggests that she has a "negative" balance in her checking account, and that she otherwise owes considerable credit card debt, as well as outstanding "hospital bills." (See id. at pp. 4-5). Regarding her previous litigation, the plaintiff's financial affidavit lists only one prior lawsuit: Barr v. Probation Dept., et al., No. 18-cv-779 (KAD). However, based on the Court's own review, the plaintiff appears to have previously filed at least three additional lawsuits in this District: Barr v. Larregui, et al., No. 12-cv-823 (HBF), Barr v. Cappiello, et al., No. 08-cv-1153 (VLB), and Barr v. Lantz, et al., No. 08-cv-330 (AVC). This suggests that the plaintiff may not have been entirely forthcoming in her IFP application. (See Doc. No. 2 at p. 5 ("All prior cases must be listed.")). Moreover, the plaintiff has been warned previously that a failure to list all of her prior lawsuits in connection with an application for IFP status would result in a denial of any such motion. See Barr v. Probation Dept., et al., No. 18-cv-779 (KAD) at Doc. No. 6, p. 3 n.1. Despite this deficit to her application, the Court nevertheless finds that denying the plaintiff IFP status here would not "spare prospective defendants the inconvenience and expense of answering [a frivolous] complaint[]," but instead would prevent an "indigent litigant[]... meaningful access to the federal courts." See Neitzke v. Williams, 490 U.S. 319, 324 (1989); see also Patterson v. Rodgers, 708 F. Supp. 2d 225, 231 (D. Conn. 2010) ("The Court has not found any case that has denied a non-prisoner in forma pauperis status based solely on his failure to answer questions regarding prior lawsuits."). Moreover, the Court notes that three of the plaintiff's four prior lawsuits were filed over ten years ago, and that none of them appear to have been dismissed as frivolous. Plaintiff is, however, once again warned that her failure to include the aforementioned prior lawsuits in any future application for IFP status is likely to result in the denial of any such motion. For the foregoing reasons, the Court finds that the plaintiff, through the financial affidavit attached to the instant motion, has demonstrated to the Court an inability to pay for the commencement of this action. Accordingly, the Court GRANTS plaintiff's Motion to Proceed IFP. Signed by Judge Robert M. Spector on June 26, 2023. (Spears, Andrew)
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Filing 5
ORDER REFERRING CASE to Magistrate Judge Robert M. Spector for ruling on #2 MOTION for Leave to Proceed in forma pauperis. Signed by Judge Kari A. Dooley on 6/23/2023.Motion referred to Judge Robert M. Spector.(Gould, K.)
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Filing 10
STANDING PROTECTIVE ORDER Signed by Judge Kari A. Dooley on 6/20/23.(Pesta, J.)
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Filing 9
ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Kari A. Dooley on 6/20/23.(Pesta, J.)
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Filing 8
Order on Pretrial Deadlines: Amended Pleadings due by 8/19/2023 Discovery due by 12/20/2023 Dispositive Motions due by 1/24/2024 Signed by Clerk on 6/20/23.(Pesta, J.)
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| Filing 4 MOTION to Appoint Counsel by Tanya Barr. (Sichanh, Christina) |
| Filing 3 Notice: Pursuant to Federal Rule of Civil Procedure 7.1, a disclosure statement must be filed with a party's first appearance, pleading, petition, motion, response, or other request addressed to the Court and must be supplemented if any required information changes during the case. Signed by Clerk on 6/20/2023.(Sichanh, Christina) |
| Filing 2 MOTION for Leave to Proceed in forma pauperis by Tanya Barr. (Sichanh, Christina) |
| Filing 1 COMPLAINT against Castelot, Fernandez, P. Tesla, filed by Tanya Barr.(Sichanh, Christina) |
| Judge Kari A. Dooley and Judge Robert M. Spector added. (Freberg, B) |
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