Gulley v. Dzurenda et al

Filing 58

ORDER denying 55 Motion for Production of DVD Recordings Served on Defendants; denying 56 Motion for Production of DVD Recordings Served on Defendants; denying 57 Motion to Appoint Counsel. See attached ruling. Signed by Judge Thomas P. Smith on August 27, 2010. (Hyne, J.)

Gulley v. Dzurenda et al

Doc. 58

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT CHAZ O. GULLEY, - Plaintiff

v.

CIVIL NO. 3:08-CV-492 (TPS)

JAMES DZURENDA ET AL, - Defendants. Ruling on Pending Motions Pending before the court are plaintiff's motions for

interference and obstruction of justice and Rule 11 sanctions, for production of DVD video recordings served on defendants, and for appointment of counsel. motions are DENIED. I. Motion for Interference, Obstruction of Justice, and Rule 11 Sanctions [Dkt. #55] Plaintiff claims that "on July 22nd 2010 C.E.R.T. training procedures was taken by D.O.C. officials from the plaintiff with the permission of Assistant Attorney General Terrence O'Neill." Arguing that such conduct violated the attorney-client privilege, plaintiff asks this court to impose sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. Plaintiff asserts that For the reasons set forth below, the

doing so would "aid and assist `pro se' plaintiff in his civil lawsuit against the defendants." Rule 11 is designed to "deter frivolous claims and curb abuses of the legal system, thereby speeding up and reducing the costs of

Dockets.Justia.com

litigation."

Binghamton Masonic Temple v. Bares, 168 F.R.D. 121, Sanctions should

126 (N.D.N.Y. 1996)(internal citations omitted).

be imposed with caution and only when a lawyer makes frivolous representations to the court that are unsupported by law and fact. Id. Rule 11 was not intended to "provide a mechanism for imposing

sanctions for any and all improper conduct of a party or its counsel during the litigation." Associated Indem. Corp. v.

Fairchild Indus., 138 F.R.D. 384, 389 (S.D.N.Y. 1991)(internal citations omitted). Put simply, the purpose of Rule is to See

discourage frivolous litigation, not to punish litigants. Brown v. Pierce Mfg., 169 F.R.D. 118, 119 (E.D. Wis. 1996).

In this case, plaintiff has not presented any evidence that defendants' counsel made any frivolous claims or representations to the court that are unsupported by law and fact. Plaintiff has only

argued, without presenting any evidence to support his contention, that D.O.C. officials confiscated C.E.R.T. training procedures (which plaintiff did not identify or explain for the court's edification) pursuant to permission allegedly given by Assistant Attorney General Terrence O'Neill. Rule 11 sanctions. This allegation does not merit

Plaintiff's reference to the attorney-client

privilege is unavailing because plaintiff is not represented by an attorney, as he makes clear in the instant motion for appointment of counsel. privilege. Without an attorney, there can be no attorney-client Consequently, the plaintiff's motion for interference,

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obstruction of justice, and Rule 11 sanctions is DENIED. II. Motion for Production of DVD Recordings Served on Defendants [Dkt. #56] Plaintiff requests that the defendants return "true and

correct and complete copies of DVD video recordings."

Plaintiff

has enclosed an Inmate Request Form in which he indicated that prison officials will not permit him to access or view the

videotapes "of this incident."

A prison staff member identified

only as "Rowen" responded that "the attorney general's office has been contacted in regard to the above [request]. being stored feedback. in the meantime until the AG's The DVD's are office provides

You can have your attorney contact me directly if there Plaintiff also enclosed an "Inmate

are additional questions."

Administrative Remedy Form" in which he requested access to the aforementioned video tapes. This, too, was denied. On June 16,

2010, Warden Powers replied that plaintiff's grievance regarding legal access is denied and that the "DVD's will be returned to the sending attorney's office." This motion appears to be a request for production in which the plaintiff seeks access Rule to 34 certain of the video Federal tapes Rules that of the

defendants

possess.

Civil

Procedure generally permits this type of production request, but Rule 26(b)(2)(C) dictates that the Court must limit the frequency of discovery if it determines that "the party seeking discovery has had ample opportunity to obtain the information by discovery in the 3

action."

The initial discovery deadline in this case was May 15,

2009, and was subsequently extended to September 1, 2009. See dkt. #26. The deadline for discovery, therefore, expired over 11 months before plaintiff filed this motion. Because the plaintiff had

ample opportunity with his former counsel to request the return of these videos during discovery, the plaintiff's motion is DENIED as untimely. III. Motion to Appoint Counsel Plaintiff seeks the appointment of pro bono counsel. The

Second Circuit has made clear that before an appointment is even considered, the indigent person must demonstrate that he is unable to obtain counsel. See Hodge v. Police Officers, 802 F.2d 58, 61 Plaintiff has

(2d Cir. 1986), cert. denied, 502 U.S. 996 (1991).

twice failed to sufficiently demonstrate his inability to obtain counsel, which resulted in the court's denial of his two previous motions for appointment of counsel. Regarding the instant motion, See dkts. ## 46, 49. the plaintiff has made a

somewhat stronger showing.

Plaintiff has once again attached a

letter from Beck & Eldergill, P.C., in which Kathleen Eldergill declined the opportunity to represent plaintiff. Plaintiff has

also enclosed a similar declination from Rowena A. Moffett at Brenner, Saltzman & Wallman LLP. Furthermore, plaintiff wrote

letters in early March 2010 requesting legal representation from John R. Williams & Associates and McCarter & English, LLP, but

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asserts that he did not receive a response from either firm. Finally, plaintiff contacted the Inmates Legal Assistance Program ("ILAP") requesting legal assistance with the instant case. On May 4, 2010, attorney Jessica J. York replied to plaintiff and

indicated that "ILAP does not represent inmates before any court or administrative body. in your case. Therefore, ILAP will not file an appearance

However, ILAP can assist you in all aspects of your

case, . . . , where ILAP has determined that a case meets prima facie standards." According to attorney York, plaintiff did not provide ILAP with a copy of the complaint, any specific details regarding his case, or any documents filed with or received from the court. Because plaintiff failed to provide ILAP with these items, as well as any documentation relating to the incident underlying the plaintiff's complaint, ILAP is not currently in a position to assist the plaintiff with advancing his lawsuit. However, ILAP

appears willing and able to provide helpful legal assistance once it receives sufficient materials from the plaintiff. The

possibility that plaintiff could provide such materials and receive legal assistance from ILAP precludes appointment of counsel by the court at this time. The motion for appointment of counsel is Any renewal of this motion

therefore denied without prejudice.

shall be accompanied by the plaintiff's explanation of how and why ILAP was unable to provide legal assistance.

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Conclusion Plaintiff's motions for production of DVD video recordings and for interference, obstruction of justice, and Rule 11 sanctions are DENIED. Plaintiff's motion for appointment of counsel is DENIED

without prejudice. IT IS SO ORDERED. Dated at Hartford, Connecticut, this 27th day of August, 2010.

/s/ Thomas P. Smith Thomas P. Smith United States Magistrate Judge

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