McKinney v. Dzurenda et al

Filing 30

ORDER denying without prejudice 27 Motion for Reconsideration; denying without prejudice 24 Motion to reopen discovery; denying without prejudice 25 Motion to Appoint Counsel. See attached opinion. Signed by Judge Thomas P. Smith on August 12, 2011. (Hyne, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

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

v.
JAMES DZURENDA ET AL.,
- Defendants.

RULING ON PENDING MOTIONS
Pending before the court are the plaintiff’s motions to reopen
discovery and for appointment of counsel.

For the reasons set

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

Motion to Reopen Discovery [Dkt. #24]
The plaintiff seeks to reopen discovery for the “[limited]

purpose of obtaining a copy of the video or videos in the 2007
incident that took place at Garner C.I. on August 31st, 2007, 1:42
p.m. in I.P.M. II.”
motion pursuant

to

The plaintiff indicates that he filed this
advice

he

received

Assistance Program (“ILAP”) attorney.

from

an

Inmates Legal

Plaintiff has not indicated

whether he served this production request on the defendants prior
to the filing of this motion.

Therefore, the court must construe

plaintiff’s motion as a motion to compel the defendants’ production
of the video.
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 attempted to confer with opposing counsel in
a good faith effort to resolve the discovery dispute without the
intervention of the court.
certification.

The plaintiff has not filed such a

Plaintiff

did

provide

a

letter

he

wrote

to

Assistant Attorney General Ann Lynch, attached as Exhibit A to his
objection to the court’s denial of his earlier motion to compel
[see dkt. #21], but the letter only contains plaintiff’s statement
that “he filed discovery.”

It does not include Ms. Lynch’s

response, if any, and it does not suggest in any way that Ms. Lynch
refused

to

comply

with

the

plaintiff’s

discovery

requests.

Consequently, the plaintiff’s motion to compel is DENIED without
prejudice as premature. The plaintiff is encouraged to contact Ms.
Lynch, serve her with his request for the video, and document her
response thereto.
II.

Motion to Appoint Counsel [Dkt. #25] and Motion
Reconsideration of Motion to Appoint Counsel [Dkt. #27]

for

The plaintiff seeks the appointment of counsel, asserting that
he

“suffers

from

mental

illness,”

such

as

“bi-polar,

severe

depression, and [psychosis].” The plaintiff claims the environment
in which he lives “deprives the senses, making it worse,” and that
he recently experienced an issue that he will not go into because
“it is private.”

Finally, plaintiff claims that the “severe
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isolation is destroying [him] internally.” Regarding the merits of
his case, plaintiff states that he has survived summary judgment,
but the docket reveals that no motion for summary judgment has ever
been filed in this case.

Plaintiff asserts that he has made a good

faith effort to obtain his own counsel, but that lawyers either
ignore his requests or refuse to take his case.
Plaintiff has twice moved for the appointment of counsel.
[See dkts. ## 4, 14.]

Both times, the court denied his motion.

Most recently, on June 20, 2011, the court found that plaintiff had
not demonstrated that he is unable to secure legal assistance
without the intervention of the court.

In addition, the court

ordered that “[a]ny 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.”

(Emphasis added.)

Since that time, the plaintiff

has not provided a summary of his efforts to obtain counsel or
legal assistance and the reasons why assistance or representation
was unavailable.

Rather, he merely declares that he has made a

“good faith effort to obtain a lawyer” and complains that they
don’t write back or “they do and don’t want to [represent him].”
This declaration is insufficient.
As evidenced by plaintiff’s recent pro se filings and letter
to the court [see dkts. ## 21, 22, 23, 24, 25, 26, 27, 28], the
plaintiff is capable of contacting attorneys by mail. Moreover, in
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his motion to reopen discovery, the plaintiff revealed that he has
sought and received legal assistance from an ILAP attorney.
Consequently, the plaintiff’s two motions to appoint counsel are
DENIED without prejudice.

See Hodge v. Police Officers, 802 F.2d

58, 61 (2d Cir. 1986), cert. denied, 502 U.S. 996 (1991) (before an
appointment of counsel is even considered, the indigent person must
demonstrate that he is unable to obtain counsel).
III. Conclusion
The motion to reopen discovery [dkt. #24] is DENIED without
prejudice.

The motion for appointment of counsel [dkt. #25] and

the motion for reconsideration of motion to appoint counsel [dkt.
#27] are DENIED without prejudice.

Any renewal of these motions

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.
IT IS SO ORDERED.
Dated at Hartford, Connecticut, this 12th day of August, 2011.

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

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