McKinney v. Dzurenda et al

Filing 17

ORDER denying without prejudice 13 Motion to Compel; denying without prejudice 14 Motion to Appoint Counsel. See attached opinion. Signed by Judge Thomas P. Smith on June 20, 2011. (Hyne, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

WILLIAM J. MCKINNEY
PRISONER
CIVIL NO. 3:10-cv-880 (AVC)(TPS)

V.

JAMES DZURENDA ET AL.
RULING ON PENDING MOTIONS
Pending before the court is a motion for discovery and a
motion for appointment of counsel filed by the plaintiff.

For the

reasons set forth below, the plaintiff’s motions are DENIED.
I.

Motion to Compel Discovery [dkt. # 13]
The plaintiff seeks an order directing the defendants to

produce documents described in his motion. The court construes the
motion as a motion to compel.

It does not appear that the

plaintiff has served this request for production of documents on
the defendants prior to the filing of this motion.

Thus, the

motion is premature.
In addition, a party may seek the assistance of the court only
after he has complied with the provisions of Rule 37(a)(1) of the
Federal Rules of Civil Procedure and Rule 37(a) of the Local Civil
Rules of the United States District Court for the District of
Connecticut.

Under both rules, a motion to compel must include a

certification that the plaintiff has made an attempt to confer with
opposing counsel in a good faith effort to resolve the discovery
dispute without the intervention of the court.

The plaintiff has failed to file a certification that he has
made a good faith effort to resolve this discovery dispute without
the intervention of the court.

Because the plaintiff has not

complied with the provisions of Local Rule 37(a), the motion to
compel is DENIED without prejudice as premature.
II.

Motion for Appointment of Counsel [dkt. # 14]
The plaintiff is seeking the appointment of pro bono counsel

in this action 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), cert. denied, 502 U.S. 996 (1991).

In this instance, the

plaintiff fails to demonstrate that he is unable to secure legal
assistance on his own.
The

plaintiff

states

that

he

contacted

one

attorney

in

December 2007, who agreed to take his case but later withdrew due
to a conflict of interest.
until June 2010.

The plaintiff did not file this action

The plaintiff contacted another attorney in

January 2010, who declined to take the case.
plaintiff

sent

a

letter

to

an

office

of

In March 2010, the
the

American

Civil

Liberties Union, but did not receive a response to this letter.
In April 2011, the plaintiff contacted the Inmates’ Legal
Assistance Program.

An attorney from the program sent a letter to

the plaintiff informing him that in order to evaluate the merit of
his claims, he must send additional information, including copies
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of documents he has filed with the court, copies of any rulings by
the court, and any other documentation to substantiate his claims.
The plaintiff asserts that he does not have access to any documents
or

documentation

Correctional

because

Institution.

he

is

in

isolation

Thus,

he

has

not

at

Northern

forwarded

any

information to the attorney at Inmates’ Legal Assistance Program.
The plaintiff has not demonstrated that he is unable to secure
legal

assistance

without

the

intervention

of

the

court.

Accordingly, the plaintiff’s motion for appointment of counsel is
DENIED without prejudice.
Conclusion
The Motion to Compel [dkt. # 13] is DENIED without prejudice
as premature. The Motion for Appointment of Counsel [dkt. # 14] is
DENIED without prejudice.

Any renewal of this motion shall be

accompanied by a summary of the plaintiff’s attempts to obtain
counsel or legal assistance and the reasons why assistance or
representation was unavailable.

The Clerk is directed to send the

plaintiff copies of the Complaint [dkt. # 1], Initial Review Order
[dkt. # 6] and the Answer to the Complaint [dkt. # 9].
IT IS SO ORDERED.
Dated at Hartford, Connecticut, this 20th day of June, 2011.

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

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