Damato v. Department of Corrections et al

Filing 52

ORDER denying 42 , 49 , and 50 Motions to Appoint Counsel, denying 46 Motion to Compel, and granting 48 Motion for Extension of Time for the plaintiff to respond to 38 Motion for Summary Judgment, until 11/8/10. Signed by Judge Thomas P. Smith on 8/6/10. (Wilson, J.)

Damato v. Department of Corrections et al

Doc. 52

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT GARY R. DAMATO, Plaintiff, v. DOC MEDICAL, et al., Defendants. : : : : : : :

Case No. 3:08cv1859(DJS)(TPS)

RULING AND ORDER The plaintiff has filed motions for appointment of counsel, a motion seeking an additional 90 days to respond to the defendants' motion for summary judgment, and a motion to compel. I. Motions for Appointment of Counsel The Second Circuit repeatedly has cautioned district courts 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). 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. Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). The Court denied the plaintiff's prior motion to appoint counsel because he failed to show that he had attempted to obtain representation or legal assistance on his own. He now attaches to

his present motions letters from several law firms and legal clinics declining representation. He does not indicate, however,

that he sought assistance from Inmates' Legal Assistance Program, the organization created to provide legal assistance to prisoners

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in cases against the Department of Correction.

Without contacting

Inmates' Legal Assistance Program, the Court cannot conclude that plaintiff is unable to obtain legal assistance on his own. Further, when deciding whether to appoint counsel, the

district court must "determine whether the indigent's position seems likely to be of substance." Id. In Cooper v. Sargenti, the

Second Circuit cautioned district courts against the "routine appointment of counsel" and reiterated the importance of requiring an indigent to "pass the test of likely merit." 74. 877 F.2d at 173-

The Court explained that "even where the claim is not counsel is often unwarranted where the indigent's

frivolous,

chances of success are extremely slim." At this time, the Court cannot

Id. at 171. determine whether the

plaintiff's claims have likely merit.

The defendants have filed a

motion for summary judgment in response to documentary evidence submitted by the plaintiff in opposition to their motion to

dismiss. The plaintiff has not responded to the motion.

Thus, the

Court has not yet considered the merits of any of the plaintiff's claims. The plaintiff's motions for appointment of counsel [Docs. #42, 49, 50] are DENIED without prejudice. II. Motion for Extension of Time The defendants filed a motion for summary judgment on May 21, 2010. The plaintiff was granted an extension of time, until August

2

10, 2010, to file his opposition. until November 8, 2010, to respond.

He now seeks another 90 days, The plaintiff's motion [Doc.

#48] is GRANTED. The plaintiff is cautioned, however, that because he now has been granted nearly six months to respond to the defendants' motion, the Court will not consider favorably any further requests for extension of time. III. Motion to Compel Although he captions this document a motion to compel, the plaintiff merely asks the Court to compel that counsel be appointed to represent him. As the Court has determined above, appointment The motion to

of pro bono counsel is not warranted at this time. compel [Doc. #46] is DENIED. IV. Conclusion

The plaintiff's motions for appointment of counsel [Docs. #42, 49, 50] are DENIED without prejudice. The plaintiff's motion for

extension of time [Doc. #48] is GRANTED and his motion to compel [Doc. #46] is DENIED. The plaintiff shall file his opposition to

the defendants' motion for summary judgment on or before November 8, 2010. Any requests for further extensions of time will not be

considered favorably. SO ORDERED at Hartford, Connecticut this 6th day of August, 2010. /s/ Thomas P. Smith Thomas P. Smith United States Magistrate Judge 3