Castellano v. Murphy et al
RULING denying without prejudice 28 Motion to Appoint Counsel ; denying 32 Motion for Leave to File; denying 35 Motion for Leave to File. Signed by Judge Stefan R. Underhill on 9/7/2012. (Oliver, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOSEPH JAMES CASTELLANO
CASE NO. 3:10CV794 (SRU)(WIG)
PETER J. MURPHY, ET AL.
RULING ON PENDING MOTIONS
Pending before the court are motions for appointment of counsel and to file affidavits.
For the reasons set forth below, the motions are denied.
Motion for Appointment of Counsel [Doc. No. 28]
The plaintiff is seeking an appointment of pro bono counsel pursuant to 28 U.S.C. §
1915. 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 (2d Cir. 1986).
The plaintiff asserts that he contacted twelve attorneys from 2009 to 2011 seeking legal
representation, but no attorney has agreed to accept his case. Attached to his motion are two
letters from attorneys declining representation in 2009 and one attorney declining representation
in 2011. The plaintiff also attaches a letter from the Inmates’ Legal Assistance Program
declining to assist the plaintiff due to a conflict of interest.
In a prior ruling denying the plaintiff’s motion for counsel, the court noted that the
plaintiff had not made any recent attempts to find counsel. The plaintiff has made only two
recent attempts to secure the assistance of counsel. The court concludes that these attempts are
insufficient to demonstrate that the plaintiff is unable to find counsel on his own. Accordingly,
the motion for appointment of counsel is denied without prejudice.
Motions to File Affidavits [Docs. Nos. 32 and 35]
The plaintiff seeks to file affidavits to further support his claims against the defendants.
He claims that the contents of the affidavits include constitutional law. The plaintiff already filed
an affidavit on March 29, 2012. See (Doc. No. 29.)
Rule 56(c)(4), Fed. R. Civ. P., states that “[a]n affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
The documents that the plaintiff seeks to file are not affidavits or declarations. They are not
sworn or subscribed as true under penalty of perjury. Furthermore, they do not show that the
plaintiff is competent to testify about the information in the affidavits.
In addition to the fact that the information that the plaintiff seeks to submit is not in the
form of an affidavit or declaration, the plaintiff has not explained how any of the information
supports his own motion for summary judgment or his opposition to the defendants’ motion for
summary judgment. The plaintiff’s medical records that are attached to the motions to file
affidavits have already been submitted by defendants and the plaintiff in support of their motions
for summary judgment. The court will consider those records when ruling on the motions for
summary judgment. Accordingly, the motions to submit affidavits are denied.
The Motion for Appointment of Counsel [Doc. No. 28] is DENIED without prejudice.
Any renewal of this motion shall be accompanied by a summary of the plaintiff’s recent attempts
to secure the assistance or representation of counsel and the reasons why assistance or
representation was unavailable. The Motions to File Affidavits [Docs. Nos. 32 and 35] are
SO ORDERED at Bridgeport, Connecticut, this 7th day of September 2012.
/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge
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