Hunnicutt v. Kitt et al

Filing 39

RULING denying 33 Motion to Compel; granting 34 Motion for Extension of Time to File to 8/26/11 to Respond to the 31 MOTION for Summary Judgment; granting 34 Motion for Extension of Time ; denying 36 Motion to Dismiss; denying 36 Motion to Stay; denying 37 Motion to Appoint Counsel ; denying 38 Motion. Signed by Judge Charles S. Haight, Jr on 7/25/11. (Pesta, J.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
CARNELL HUNNICUTT, SR.,
Plaintiff ,
v.

3:10-cv-857 (CSH)

TAWANDA KITT, et al.,
Defendant s.

RULING ON PENDING MOTIONS
HAIGHT, Senior District Judge:
Plaintiff Carnell Hunnicutt, Sr., incarcerated and pro se, has filed motions to compel, for
appointment of counsel, for waiver of fees, for extension of time, and to deny or stay consideration
of Defendants’ motion for summary judgment. Except for the motion for extension of time, which
is GRANTED, Plaintiff’s motions are DENIED. The Court reserves judgment on the Defendants’
pending motion for summary judgment to allow Plaintiff to file an opposition on the merits rather
than merely objecting based on outstanding discovery requests.1
I.

Motion to Compel
Plaintiff moves to compel production of all outstanding discovery. Defendants have not

responded to the motion.
Rule 37, D. Conn. L. Civ. R., requires that, before filing a motion to compel, the moving
party must confer with opposing counsel in a good faith effort to resolve the dispute. The purpose
of this rule is to encourage the parties to resolve discovery disputes without court intervention. See

1

The Plaintiff filed a timely opposition to the Defendants’ motion for summary
judgment, but did not address the Defendants’ arguments that the Plaintiff has failed to assert any
constitutionally-viable claims. [Doc. 35.]

Hanton v. Price, No. 3:04cv473(CFD), 2006 WL 581204, at *1 (D. Conn. Mar. 8, 2006). If
discussions are not successful, the party moving to compel must submit an affidavit certifying the
attempted resolution and specifying which issues were resolved and which remain. Plaintiff has filed
an affidavit suggesting that any contact between the parties has been contentious. Plaintiff reports
that the Defendants threatened to file a motion for a protective order and he offered to compromise
by reviewing all personnel and other files and asking for copies of documents that strike his fancy.
Thus, it is not clear that the parties have attempted a good faith resolution.
In addition, Rule 37(b)(1) requires that any discovery motion be accompanied by a
memorandum of law “contain[ing] a concise statement of the nature of the case and a specific
verbatim listing of each of the items of discovery sought or opposed, and immediately following
each specification shall set forth the reason why the item should be allowed or disallowed.” Copies
of the discovery requests must be included as exhibits.
Plaintiff has attached to his motion a copy of his first request for production of documents
and Defendants’ objections. Plaintiff also provided a second request for production of documents
dated December 9, 2010, and another document entitled second request for interrogatories and
production of documents dated January 5, 2011. Defendants have not responded to these requests
other than to request that plaintiff withdraw them.
Although Plaintiff submitted the required memorandum, it does not comply with the local
rule. Plaintiff’s general discussion of his discovery requests is insufficient. Plaintiff has not
included a verbatim listing of each item sought along with specific reasons why this item is needed
to resolve a specific claim in the case. Plaintiff’s motion to compel is denied for failure to comply
with local court rules.
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II.

Motion for Appointment of Counsel
Plaintiff seeks appointment of pro bono counsel in this action pursuant to 28 U.S.C. § 1915.

The Second Circuit repeatedly has cautioned the 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). In that regard, the Second Circuit has made it 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), cert. denied, 502 U.S.
996 (1991). Plaintiff identifies several law firms that have declined assistance. In addition, he states
that Inmates’ Legal Assistance Program will not assist him because he fails to state a prima facie
case.
The Second Circuit also has cautioned the district courts against the “routine appointment
of counsel” and reiterated the importance of requiring an indigent to “pass the test of likely merit.”
Cooper, 877 F. 2d at 173-74. The court of appeals reasoned that “even where the claim is not
frivolous, counsel is often unwarranted where the indigent’s chances of success are extremely slim.”
Id. at 171. Here, Defendants have filed a motion for summary judgment on the ground that Plaintiff
fails to state any cognizable claims, and Plaintiff has reported that Inmates’ Legal Assistance
Program has determined that he fails to state a prima facie claim.
At this stage of litigation, the Court cannot determine whether Plaintiff’s claims possess
likely merit. Accordingly, his motion for appointment of counsel is denied without prejudice to
refiling if Defendants’ motion for summary judgment is denied.
III.

Motion for Waiver of Fees
Plaintiff seeks waiver of fees for service of discovery subpoenas. As the Court previously
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informed plaintiff, he is responsible for service of discovery subpoenas. [Doc. 28.] The in forma
pauperis status does not required the Court to pay discovery-related expenses. See Tajeddini v.
Gluch, 942 F. Supp. 772, 782 (D. Conn. 1996); see also Badman v. Stark, 139 F.R.D. 601, 604
(M.D. Pa. 1991) (denying indigent litigant’s request for issuance of subpoena duces tecum where
litigant failed to indicate how he would pay for service and witness fees). Plaintiff’s motion for
waiver of fees is denied.
IV.

Motion for Extension of Time
Plaintiff seeks an extension of time to respond to the Defendants’ motion for summary

judgment. The extension is GRANTED. Plaintiff shall file his opposition on or before August 26,
2011. If so advised, Defendants may file reply papers within fourteen (14) days after the filing of
Plaintiff’s opposition papers.
V.

Motion to Deny or Stay
Pursuant to Rule 56(d),2 Fed. R. Civ. P., Plaintiff asks the Court to deny or stay consideration

of Defendants’ motion for summary judgment because outstanding discovery issues have not been
resolved. Plaintiff states that defendants have not responded to all outstanding discovery requests
and will not disclose to him the locations of inmates from whom he seeks affidavits.
Rule 56(d) permits the Court to deny or defer ruling on a motion for summary judgment if
the non-moving party “shows by affidavit or declaration that, for specified reasons, it cannot present
facts essential to justify its opposition.” The non-moving party must indicate how the facts sought
would reasonably create a genuine issue of material fact. See In re Dana Corp., 574 F.3d 129, 1482

Amendments to the Federal Rules of Civil Procedure, effective December 1, 2010,
moved this provision from Rule 56(f) to Rule 56(d). The cited cases refer to the former location
of the provision.
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49 (2d Cir. 2009) (citing Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994)).
Plaintiff has not provided the required affidavit or declaration. Even if he had, however, his
motion would be denied. Defendants move for summary judgment on the grounds that the facts
alleged do not state cognizable constitutional claims and they are protected by qualified immunity.
When the Court decides the motion, it will assume that Plaintiff can prove his allegations and
determine whether the Plaintiff’s allegations rise to the level of a constitutional claim. Thus, any
discovery seeking evidence to establish the alleged facts is unnecessary to the motion for summary
judgment.
Plaintiff’s motion under Rule 56(d) is denied. As previously stated, Plaintiff is directed to
file his opposition to Defendants’ motion for summary judgment on or before August 26, 2011,
subject to Defendants’ right of timely reply. No further extensions will be granted. If Plaintiff fails
to file timely opposition papers, the Court will decide the motion on the then existing record.
VI.

Conclusion
Plaintiff’s motion to compel [Doc. 33] is DENIED. Plaintiff’s motion for appointment of

counsel [Doc. 37] is DENIED without prejudice. Plaintiff’s motion for waiver of fees [Doc. 38] is
DENIED. Plaintiff’s motion for extension of time [Doc. 34] is GRANTED. Plaintiff’s motion to
deny or stay consideration of defendants’ motion for summary judgment [Doc. 36] is DENIED.
Plaintiff shall file his opposition to Defendants’ motion for summary judgment on or before August
26, 2011.

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It is SO ORDERED.
Dated: New Haven, Connecticut
July 25, 2011

/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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