Nelson v. Lanphaer et al
| Stephen Daniel Nelson |
| Lanphaer, Zegarzewski, Robert Martin and Lacy |
| 3:2024cv00007 |
| January 2, 2024 |
| US District Court for the District of Connecticut |
| Sarala V Nagala |
| S Dave Vatti |
| Prisoner: Civil Rights |
| 42 U.S.C. § 1983 Prisoner Civil Rights |
| Plaintiff |
Docket Report
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Filing 18
ORDER denying without prejudice #16 Motion to Appoint Counsel.The Court set forth the legal standard that applies to motions to appoint counsel in its January 12, 2024, order. ECF No. 8. After applying that standard, the Court denies without prejudice Plaintiff's renewed motion for appointment of counsel. First, Plaintiff has now demonstrated that he has attempted to procure counsel and that counsel have declined to represent Plaintiff. E.g., ECF No. 16 at 6. However, Plaintiff has still not demonstrated at this early stage that his claims are sufficiently meritorious to warrant appointment of counsel. See ECF No. 8. As the Court has already explained, this Court has not yet conducted initial review of the Complaint, wherein the Court will determine that certain claims are not facially frivolous and should proceed to service of process. It is only after the Complaint proceeds to process that Plaintiff may have the opportunity to engage in discovery and investigation of witnesses. At this later point, the Court may consider whether Plaintiff has sufficiently demonstrated a need for appointed counsel. The Court remains mindful of the difficulties faced by parties when litigating an action without an attorney, particularly when that party is incarcerated. However, the Court can only impose upon private attorneys to give their time and efforts without compensation in cases where the plaintiff has demonstrated that the claims have sufficient merit. The Court cannot conclude that Plaintiff has satisfied that threshold requirement in this case at this time.Because Plaintiff has not demonstrated that his claims are sufficiently likely to succeed on the merits, the Motion for Appointment of Counsel, ECF No. 16, is DENIED without prejudice. Plaintiff may file a new motion at a later stage of the litigation, if circumstances change. Signed by Judge Sarala V. Nagala on 2/29/2024. (Parfenoff, I)
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Filing 17
ORDER denying as moot #12 Motion for Reconsideration. Because Plaintiff has filed a renewed motion for appointment of pro bono counsel, the Court denies as moot Plaintiff's motion for reconsideration the Court's order denying his initial motion for pro bono counsel. Signed by Judge Sarala V. Nagala on 2/29/2024. (Parfenoff, I)
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| Filing 16 MOTION to Appoint Counsel, by Stephen Daniel Nelson. (Mendez, D) |
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Filing 15
ORDER denying #13 Motion to Amend Complaint. Plaintiff has filed a motion that is styled as a motion to amend his complaint "to toll the statute of limitations." Rather than seeking to amend his complaint, however, Plaintiff has presented arguments in favor of his original complaint proceeding despite any statute of limitations concerns. The Court denies Plaintiff's motion, insofar as it seeks to amend the complaint, because amendment is unnecessary at this stage of the litigation. With respect to the statute of limitations concern, expiration of the applicable statute of limitations is an affirmative defense that may be raised or waived by a defendant. See Pino v. Ryan, 49 F.3d 51, 52 (2d Cir. 1995). While Plaintiff may argue that tolling saves his claims if a defendant was to raise a statute of limitations defense, Plaintiff's argument is unripe at this stage. Signed by Judge Sarala V. Nagala on 2/23/2024. (Parfenoff, I)
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Filing 14
ORDER. Plaintiff has filed a motion for reconsideration of the Court's decision denying Plaintiff's motion for pro bono counsel. See ECF No. 12. Pursuant to Local Rule 7(c)(1), all motions for reconsideration "shall be filed and served within (7) days of the filing of the decision or order from which such relief is sought." Plaintiff's motion for reconsideration is dated as mailed on February 19, 2024, well more than seven days from when the Court's decision was entered on January 12, 2024. See ECF No. 8. Plaintiff must file a motion for extension of time nunc pro tunc explaining his apparent failure to meet this seven-day deadline by March 6, 2024, should he wish the Court to consider his motion for reconsideration. Signed by Judge Sarala V. Nagala on 2/23/2024. (Parfenoff, I)
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| Filing 13 MOTION to Amend #1 Complaint, by Stephen Daniel Nelson. Responses due by 3/13/2024. (Mendez, D) |
| Filing 12 MOTION for Reconsideration re 8 Order on Motion to Appoint Counsel, by Stephen Daniel Nelson. (Mendez, D) |
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Filing 11
ORDER denying without prejudice #9 Motion for Leave to Proceed In Forma Pauperis. On February 8, 2024, the plaintiff filed a motion for leave to proceed in forma pauperis ("IFP"). That same day, the docket reflects that the plaintiff paid the filing fee of $405 in full, and the court entered the receipt on the docket. He does not now appear to be facing any expenses that would prevent his case from proceeding.The court therefore interprets his motion as a request that he be excused in advance from paying fees or costs that he might incur in the future, for example, fees for service of process, preparing transcripts of proceedings, for printing the record, etc. However, the plaintiff has not shown that he is unable to pay those expenses. Courts typically excuse plaintiffs from paying fees only when payment would constitute a serious hardship. Fiebelkorn v. U.S., 77 Fed. Cl. 59, 62 (2007); Morales v. Rembisz, No. 3:20-cv-00192 (JCH), slip op. at 2 (Feb. 14, 2020). Here, the plaintiff has not shown that any of the fees he is likely to incur would constitute a serious hardship in light of his financial picture. Although he states on his IFP application that he is "currently an Inmate and... do[es] not have the financial wherewithal due to [his] circumstances," his failure to sign the application under penalty of perjury renders it insufficient as submitted. (ECF No. 9, at 3.) Furthermore, pursuant to 28 U.S.C. 1915(a)(2), a prisoner who seeks to proceed IFP in a civil action must submit "a certified copy of the trust fund account statement... for the 6-month period immediately preceding the filing of the complaint." Here, the plaintiff submitted an uncertified account statement for a period of less than one month. (ECF No. 10, at 1.) Furthermore, questions about whether plaintiffs can pay fees subsequent to the initial filing fee are usually addressed at the time those fees arise. See Walker v. Peoples Exp. Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989) (holding that when a litigant pays the initial filing fee but asks to be excused from later fees, he must... show that he is unable to pay the particular cost at issue"); see also Gould v. Barone, No. 3:21-cv-1237 (SVN), slip op. (D. Conn. Dec. 6, 2021). The Court cannot make this determination until it knows the fees that the plaintiff proposes to incur and what resources he has at that time.Accordingly, the motion is DENIED without prejudice to refiling at a later date, when the plaintiff knows what fees he might incur. If he does re-file in the future, he must submit a complete financial affidavit and an updated inmate trust account statement, with the required certification, to reflect his then-existing financial circumstances. He should use the standard-form in forma pauperis application prepared by the District of Connecticut specifically for inmates to ensure he satisfies these requirements. So ordered.Signed by Judge Thomas O. Farrish on 2/14/2024. (Corriette, M.)
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| Filing 10 Prisoner Trust Fund Account Statement, by Stephen Daniel Nelson. (Mendez, D) |
| Filing 9 MOTION for Leave to Proceed in forma pauperis, by Stephen Daniel Nelson. (Mendez, D) |
| Filing fee received from Stephen Daniel Nelson: $ 402.00, receipt number BPT-14158. $ 3.00, receipt number BPT-14159. Total: $405.00 (Fanelle, N.) |
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Filing 8
ORDER denying without prejudice #4 Motion to Appoint Counsel. Because civil litigants do not have a constitutional right to the appointment of counsel, a court's decision to appoint pro bono counsel is discretionary. Leftridge v. Conn. State Trooper Officer No. 1283, 640 F.3d 62, 68-69 (2d Cir. 2011) ("A party has no constitutionally guaranteed right to the assistance of counsel in a civil case." (citation omitted)); Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986) ("Broad discretion lies with the district judge in deciding whether to appoint counsel[.]" (citation omitted)); 28 U.S.C. Sec. 1915(e)(1) (permitting district court to appoint pro bono counsel for indigent litigant). The Second Circuit has cautioned the district courts against the "routine appointment of counsel." Cooper v. A. Sargenti Co., 877 F.2d 170, 173-74 (2d Cir. 1989). Before an appointment of pro bono counsel for an indigent litigant is considered, the indigent person must demonstrate that he tried, but was unable, to secure counsel. Hodge, 802 F.2d at 61. In addition, the district court must "determine whether the indigent's position seems likely to be of substance." Id. at 61; see also Cooper, 877 F.2d at 171. If the claims are sufficiently meritorious, the court should then consider other factors bearing on the need for appointment of counsel, including the movant's ability to investigate the factual issues of the case, whether conflicting evidence implicating the need for cross-examination will be the major proof presented, the movant's apparent ability to present the case, and the complexity of the legal issues involved. See Hodge, 802 F.2d at 61-62. First, Plaintiff has not demonstrated that he has attempted to procure counsel. While Plaintiff avers that he has reached out to counsel in vain, any future motion for appointment of counsel must include additional information demonstrating the outreach, along with the names of the attorneys contacted and the dates on which they were contacted. Second, Plaintiff has not demonstrated at this early stage that his claims are sufficiently meritorious to warrant appointment of counsel. For instance, this Court has not yet conducted initial review of the Complaint, wherein the Court will determine that certain claims are not facially frivolous and should proceed to service of process. It is only after the Complaint proceeds to process that Plaintiff may have the opportunity to engage in discovery and investigation of witnesses. At this later point, the Court may consider whether Plaintiff has sufficiently demonstrated a need for pro bono counsel. The Court is mindful of the difficulties faced by parties when litigating an action without an attorney, particularly when that party is incarcerated. However, the Court can only impose upon private attorneys to give their time and efforts without compensation in cases where the plaintiff has demonstrated that the claims have sufficient merit. The Court cannot conclude that Plaintiff has satisfied that threshold requirement in this case.Because Plaintiff has not demonstrated that legal representation or assistance is unavailable or that his claims are sufficiently likely to succeed on the merits, the Motion for Appointment of Counsel, ECF No. 4, is DENIED without prejudice. Plaintiff may file a new motion at a later stage of the litigation, if circumstances change. Signed by Judge Sarala V. Nagala on 1/12/2024. (Parfenoff, Ivan)
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| ***ENTERED IN ERROR*** Filing fee received from Stephen Nelson: $ 402.00, receipt number TBD (Imbriani, Susan) Modified on 1/16/2024 (Imbriani, Susan). |
| Request for Clerk to issue summons as to Lacy, Lanphaer, Robert Martin, Zegarzewski. (Oliver, T.) |
| Filing 4 MOTION to Appoint Counsel by Stephen Daniel Nelson. (Attachments: #1 copy of envelope) (Oliver, T.) |
| 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 1/2/2024. (Oliver, T.) |
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Filing 2
ORDER: We received your Complaint which has been assigned case number 3:24-cv-7. In order to proceed, the filing fee or a Motion for Leave to Proceed In Forma Pauperis must be submitted to the Court by 2/1/2024 or the case will be subject to dismissal. Fee information and the Motion for Leave to Proceed In Forma Pauperis form may be found on the Court's website at ctd.uscourts.gov. Dismissal due by 2/1/2024. Signed by Clerk on 1/2/2024. (Oliver, T.)
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| Filing 1 COMPLAINT against Lacy, Lanphaer, Robert Martin, Zegarzewski, filed by Stephen Daniel Nelson. (Attachments: #1 Affidavit, #2 copy of envelope) (Oliver, T.) |
| Judge Sarala V. Nagala and Judge S. Dave Vatti added. (Oliver, T.) |
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