Duverge v. USA

Filing 78

ORDER REGARDING APPEARANCE FOR PLAINTIFF. On or before April 30, 2015, one of the following must occur: plaintiff's pro bono counsel must file his Status Report, communicate with his client and discuss fully the merits of the lawsuit, and then contact both defense counsel and the Court to schedule a continued status conference; plaintiff's pro bono counsel must file a Motion for Relief from Appointment consistent with all the provisions of Local Rule 83.10(d); or plaintiff herself must file a Motion for Discharge pursuant to Local Rule 83.10(e). (See attached). Signed by Judge Joan G. Margolis on 3/25/15.(Malone, A.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
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CHARLOTINE DUVERGE
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v.
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UNITED STATES OF AMERICA
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3:10 CV 1922 (JGM)

DATE: MARCH 25, 2015

ORDER REGARDING APPEARANCE FOR PLAINTIFF
On December 7, 2010, plaintiff Charlotine Duverge, who was an inmate at the Federal
Correctional Institution in Danbury, Connecticut ["FCI Danbury"] at the time the allegations
in her complaint occurred, commenced this action pro se under the Federal Tort Claims Act
["FTCA"], 28 U.S.C. § 2671, alleging injuries arising out of treatment by her counselor
surrounding an asthma attack on May 4, 2008, and the medical treatment received
thereafter. (Dkt. #1). Specifically, plaintiff alleges that her counselor caused her to suffer
an asthma attack, injured her arm and shoulder, and gave her an overdose of asthma
medication, which caused her to have a mild heart attack. (Id. at 2-4). She also alleges that
following this incident, "[d]ue to the lack of due diligence and delay in access to proper
medical treatment, [she] suffered, and continues to suffer[,] . . . severe pain and numbness
in her entire [right] side[.]" (Dkt. #1, at 5).
On May 25, 2011, U.S. District Judge Janet Bond Arterton filed an Initial Review Order
in which she permitted plaintiff the "opportunity to address the government's response to
her [FTCA] claims." (Dkt. #4, at 2-3). On September 9, 2011, defendant filed its Answer
(Dkt. #7), along with a Motion to Transfer Venue to the District of Minnesota as plaintiff was
incarcerated at FCI Waseca at the time of filing the complaint. (Dkts. ##8-9; see Dkts.
##11, 13-14). Judge Arterton denied defendant's motion, staying and administratively

closing the case while plaintiff remained in Waseca. (Dkt. #15). Consistent with Judge
Arterton's order, discovery proceeded (see Dkt. #15; see also Dkts. ##17-20), and on July
11, 2012, plaintiff was released, and she relocated to Massachusetts. (See Dkt. #21; see
also Dkt. #24).
On October 17, 2012, Attorney Carl E. Cella filed an appearance for plaintiff, followed
shortly thereafter by Attorney John R. Williams filing his appearance for plaintiff on
November 27, 2012; on December 7, 2012, the case was reopened. (Dkts. ##22-25, 27).
Between March and May 2013, both counsel withdrew their appearances, plaintiff filed her
pro se appearance, and the parties consented to the jurisdiction of this Magistrate Judge; the
case was transferred accordingly. (Dkts. ##31-36, 38-42). In granting both attorneys'
Motions to Withdraw Appearance on May 29, 2013, this Magistrate Judge advised the pro
se plaintiff that if she "want[ed] the Court to attempt to find a pro bono attorney for her, she
should file a notice to that effect[.]" (Dkt. #42). Consistent with the Magistrate Judge's
electronic order, on June 10, 2013, the pro se plaintiff filed her Motion to Appoint Counsel
(Dkt. #44), which was granted one week later, with a request to the Court's Staff Attorneys
to "make reasonable efforts to obtain pro bono counsel to represent plaintiff." (Dkts. ##4445). From June 2013 through September 2013, the Staff Attorneys made significant efforts
to find counsel for plaintiff. On August 28, 2013, the pro se plaintiff filed a motion seeking
a settlement conference; two talented attorneys, Attorneys William J. Cass and Nicholas
Andrew Geiger, were appointed as pro bono counsel for settlement purposes only on
September 10, 2013; a settlement conference was held before U.S. Magistrate Judge Thomas
P. Smith on December 11, 2013, at which no settlement was reached. (Dkts. ##48-57).
The day after the settlement conference, that is December 12, 2013, Attorneys Cass and

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Geiger filed their Motions to Withdraw as Attorney, which were granted that same day.
(Dkts. ##58-60).
The following three months were devoted to the filing and briefing of defendant's
Motion for Summary Judgment, which was denied by this Magistrate Judge on April 7, 2014.
(Dkts. ##62-68).

See 2014 WL 1366194. On April 21, 2014, plaintiff filed her Motion

Requesting to Proceed Pro Se [and] Requesting an Immediate Trial Date or a Telephonic
Conference. (Dkt. #69). Again, after substantial efforts, the Staff Attorneys were able to
find another attorney who was appointed as pro bono counsel for plaintiff on July 18, 2014.
(Dkt. #70). On October 6, 2014, a telephonic status conference was held, at which the
Court requested that, as a courtesy to the Court and to newly appointed counsel, defense
counsel send copies of plaintiff's prison medical records to plaintiff's counsel, despite having
sent copies to plaintiff and her prior attorneys; defense counsel promptly forwarded these
copies eleven days later. (Dkts. ##71-75).

Plaintiff's newly appointed pro bono counsel

was instructed to "notify the Magistrate Judge's Chambers once [he] has had an opportunity
to review plaintiff's underlying medical records from BOP." (Dkt. #73). In early December
2014, plaintiff's pro bono counsel advised the Court that in light of the large number of
documents, he expected that he would need until "early spring" to inspect all the documents
thoroughly.
Despite the presence of continuing snow banks on the side of the road after a
particularly relentless and brutal winter, "early spring" is upon us. In the absence of any
further response from plaintiff's pro bono counsel for more than three-and-one-half months,
even after voice messages were left for him by Chambers, on March 3, 2015, this Magistrate
Judge ordered counsel to file a status report "either jointly or individually," by March 20,

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2015. (Dkt. #76). Two days later, defense counsel promptly filed his Status Report, in
which he indicated that since forwarding the medical records to plaintiff's pro bono counsel,
defense counsel "has not had any substantive discussion concerning this case with appointed
counsel for the plaintiff." (Dkt. #77). Plaintiff's pro bono counsel has failed to file his status
report.
Despite the efforts of plaintiff, defense counsel, and the Court, in the more than eight
months since pro bono counsel's appointment on July 18, 2014, the only activities in the file
have been a brief telephone conference and defense counsel graciously forwarding another
complete copy of plaintiff's medical records to plaintiff's counsel. This case cannot remain
inactive forever.1
Accordingly, on or before April 30, 2015, one of the following must occur:
(1) plaintiff's pro bono counsel files his Status Report, communicates with his client and
discusses fully the merits of the lawsuit, and then contacts both defense counsel and the
Court to schedule a continued status conference; (2) plaintiff's pro bono counsel files a
Motion for Relief from Appointment consistent with all the provisions of Local Rule 83.10(d);
or (3) plaintiff herself files a Motion for Discharge pursuant to Local Rule 83.10(e).2
Dated this 25th day of March, 2015, at New Haven, Connecticut.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

1

Under Local Rule 83.10(c)1 & 3, an attorney appointed to serve in a pro bono capacity is
obligated to "promptly communicate with his . . . client[,]" and to "discuss fully the merits of the
dispute" his client.
2

In the thirty years in which the undersigned has been privileged to serve as a federal
judicial officer, this is the first time she has filed an order like this one.

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