Dismuke v. Long et al

Filing 30

For the reasons set forth in the attached, the Court hereby rules as follows: 1. The Defendants' Second Motion for Extension of Time [ECF No. 20] until April 5, 2017 to file a response to the complaint is GRANTED absent objection and for good cause shown. The Defendants' Supplemental Statement in Support of the Second Motion for Extension of Time [ECF No. 23] is DENIED as improperly filed as a motion for extension of time.2. The Plaintiff's Motion f or Appointment of Counsel [ECF No. 16] is DENIED without prejudice to refiling at a later stage of litigation. Any renewal of this motion shall be accompanied by a summary of any attempts to obtain counsel or legal assistance, including the n ames of the attorneys contacted, the dates upon which the plaintiff made those contacts and the reasons why assistance was unavailable. 3. The Plaintiff's Motion for Extension [ECF No. 18] to conduct discovery is DENIED. The Pl aintiff's "Motion for Extension Nunc Pro Tunc" [ECF No. 21] to receive documents is DENIED. The Motion for Discovery, Disclosure and Inspection [ECF No. 22], which is actually a request for discovery is DENIED as improp erly filed with the Court. 4. Because the Plaintiff may amend the complaint as of right, the Motion to Amend [ECF No. 27] is DENIED as moot, and the Motion to Dismiss, [ECF No. 24] is DENIED without prejudice. The Plaintiff may file an amended complaint within thirty (30) days of the date of his order. If the Plaintiff chooses not to file an amended complaint within the time specified, the case will proceed as to the claims remaining in the Complaint as set forth in the Court's Initial Review Order, ECF No. 7, and the Defendants may simply file a short statement renewing their motion to dismiss and incorporating by reference their prior briefing. Further, if the Plaintiff chooses to amend his complaint , and if Defendants choose to renew their motion to dismiss, Defendants may incorporate by reference their prior briefing and/or may file a supplemental brief. 5. Finally, the parties shall complete discovery within ninety (90) days of the da te of this order, i.e., November 8, 2017. Motions for summary judgment, if any, must be filed within one-hundred and twenty (120) days of the date of this order, i.e., December 8, 2017. Signed by Judge Michael P. Shea on 8/10/2017. (Howard, H.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LASHAWN W. DISMUKE,
Plaintiff,

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v.
C/S LONG, ET AL.,
Defendants.

Case No. 3:16cv1336(MPS)

RULING ON PENDING MOTIONS
The plaintiff, LaShawn Dismuke, incarcerated and pro se, initiated this action by filing a
complaint pursuant to 42 U.S.C. § 1983 against Commissioner Scott Semple, Counselor
Supervisor Long, Captain Colon, Warden Maldinado1 and Kevin Roy. On December 20, 2016,
the Court dismissed the claims for monetary damages against all defendants in their official
capacities pursuant to 28 U.S.C. § 1915A(b)(2), the First Amendment and Fifth Amendment
claims against all defendants in both capacities pursuant to 28 U.S.C. § 1915A(b)(1), and the
Fourteenth Amendment and Eighth Amendment claims against defendants Roy and Semple in
both capacities pursuant to 28 U.S.C. § 1915A(b)(1). The case proceeded as to the Fourteenth
and Eighth Amendment claims against defendants Long, Colon, and Maldinado in their
individual capacities with respect to damages and their official capacities with respect to
declaratory and injunctive relief.
The following motions are pending before the Court: (i) Plaintiff’s motion for
appointment of counsel (ECF No. 16), (ii) Plaintiff’s motion for extension of time to conduct
discovery (ECF No. 18), (iii) Defendants’ second motion for extension of time to respond to the

The complaint names “Warden Maldinado” (ECF No. 1 at 1), but it may mean “Warden
Maldanado,” which seems to be the proper spelling of this defendant’s surname based on other
suits filed against that defendant in this Court. See, e.g., Henry v. Maldanado, et. al, 16-cv-449
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complaint (ECF No. 20) and the supplemental statement in support of the second motion for
extension of time (ECF No. 23), (iv) Plaintiff’s “motion for extension nunc pro tunc” (ECF No.
21), (v) Plaintiff’s motion for discovery, disclosure, and inspection (ECF No. 22), (vi)
Defendants’ motion to dismiss, and (vii) Plaintiff’s motion to amend the complaint (ECF No.
27). As explained below, the Court hereby GRANTS the [20] second motion for extension of
time and DENIES the remaining motions.
I.

Defendants’ Motions for Extension of Time to Respond to Complaint [ECF Nos. 20,
23]
In their second motion for extension of time (ECF No. 20) to respond to the complaint,

defendants seek an extension of time until April 5, 2017, to file a response to the complaint.
Defendants also filed, as a motion, a “Supplemental Statement” in support of the second motion
for extension of time. (ECF No. 23.) That statement indicates that on March 21, 2017, defense
counsel conferred with the Plaintiff regarding the Defendants’ second motion for extension of
time, and the Plaintiff consented to the motion. (ECF No. 23 at 1.) The (ECF No. 20) second
motion for extension of time is granted absent objection and for good cause shown. Because the
(ECF No. 23) supplemental statement in support of the second motion for extension of time
seeks no relief, it was improperly filed as a motion for extension of time. Accordingly, it is
denied.
II.

Plaintiff’s Motion for Appointment of Counsel [ECF No. 16]
The Plaintiff as a civil litigant does not have a constitutional right to the appointment of

counsel. See Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986) (district judges are
afforded “broad discretion” in determining whether to appoint pro bono counsel for an indigent

(D. Conn.), Castellano v. Murphy, et. al., 10-cv-794 (D. Conn.).
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litigant in a civil case); 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent
any person unable to afford counsel.”) (emphasis added). The Second Circuit has made clear
that before an appointment is even considered in a civil action, the indigent person must
demonstrate that he or she is unable to obtain counsel or legal assistance. See Hodge, 802 F.2d
at 61.
The Plaintiff claims that he is not an attorney and cannot afford the services of an
attorney. (ECF No. 16 at 1.) He contends that as a non-lawyer, he cannot meet deadlines or
effectively litigate this case. (Id.) He has made no attempts to secure the assistance of counsel
prior to filing this motion. Furthermore, the Plaintiff does not indicate that he made any attempts
to contact the Inmate Legal Aid Program2 with regard to any questions he might have about
litigating this case, including how to conduct discovery. Because there is a possibility that the
Plaintiff may be able to secure legal assistance or representation independently, the motion for
appointment of counsel is denied by the Court at this time. See Hodge, 802 F.2d at 61.
III.

Plaintiff’s Motion for Extension of Time to Conduct Discovery [ECF No. 18]
The Plaintiff seeks an extension of time to begin conducting discovery until the Court

rules on his motion for appointment of counsel. He claims that he is unable to “facilitate proper
discovery or to cite to legal precedents(s), due in part, to Osborn Correctional Institution not
providing access to law library materials.” (ECF No. 18 at 1-2.) The Court has now ruled on the
Plaintiff’s motion for appointment of counsel and has noted that the Plaintiff may seek assistance

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Attorneys at the Inmate Legal Aid Program may be contacted at the following address
and telephone number: Inmate Legal Aid Program, Bansley | Anthony l Burdo, LLC, 265 Orange
Street, New Haven, CT 06510, Tel. [phone].
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from the Inmate Legal Aid Program to the extent that he has questions regarding how to conduct
discovery.
The Court liberally construes the motion as a request to extend the time period to conduct
discovery. The motion is granted. The discovery deadline is extended for an additional ninety
days from the date of this order, i.e., until November 8, 2017.
IV.

Plaintiff’s “Motion for Extension Nunc Pro Tunc” [ECF No. 21]
The Plaintiff states that on January 16, 2017, he submitted a Freedom of Information Act

(“FOIA”) request to the Department of Correction and a FOIA request to the Department of
Public Health.3 (ECF No. 21 at 1.) On January 19, 2017, the Department of Correction’s FOIA
liaison responded to the Plaintiff’s requests and indicated that he would be hearing from the
FOIA office in the near future. (ECF No. 21-1 at 3.) The Plaintiff seeks an extension of time in
order to receive the materials he requested pursuant to his FOIA requests. (ECF No. 21 at 2.)
The process of obtaining documents through FOIA requests is independent of the discovery
process and this litigation. In any event, in the prior section of this ruling, the Court is extending
the discovery period to November 8, 2017. Therefore, this motion is denied.
V.

Plaintiff’s Motion for Discovery, Disclosure and Inspection [ECF No. 22]
The Plaintiff motion for discovery is actually a request for production of documents.

(ECF No. 22 at 1)(stating Plaintiff “respectfully files this motion for discovery, disclosure and
inspection of the following materials: (1) any and all documents, photograph(s), reports,
memorandums, or sanctions, received, [or] filed against Osborn Correctional Institution….(2)

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The plaintiff has attached as exhibits to this motion the FOIA requests to Department of
Corrections and the Connecticut Department of Health as well as the Department of Correction’s
response to his FOIA request. (ECF No. 21-1 at 1-3.)
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any and all documentation pertaining to efforts made to remove ‘PCB’. Asbestos from Osborn
Correctional Institution….(3) Any and all documentation through Freedom of Information Act,
including but not limited to[,] Department of Correction maintenance records….(4) any and all
documentation related to the claims presented by plaintiff….”) Discovery requests are to be
served on the opposing party’s counsel and are not to be filed with the Court pursuant to Local
Rule 5(f). D. Conn. L. R. 5(f) (“Pursuant to Fed. R. Civ. P. 5(d),…requests for
documents…shall not be filed with the Clerk’s Office except by order of the Court.”)
The Court will not construe the motion as a motion to compel because it is not clear that
the Plaintiff served the request for production of documents on counsel for the defendants or
made any effort to resolve any discovery dispute prior to filing the motion. In addition, the
Court notes that the request for production of documents fails to comply with Federal Rule of
Civil Procedure 34 in that it is not addressed to a party in this action. See Rule 34(a), Fed. R.
Civ. P. (“A party may serve on any other party a request . . . (1) to produce and permit the
requesting party or its representative to inspect, copy, test or sample the following items in the
responding party’s possession, custody or control: (A) any designated documents or
electronically stored information . . . . or (B) any designated tangible things”). The discovery
request was improperly filed as a motion and is denied.
VI.

Plaintiff’s Motion to Amend [ECF No. 27], Defendants’ Motion to Dismiss, [ECF
No. 24]
The Plaintiff seeks leave to file an amended complaint. Federal Rule of Civil Procedure

15(a)(1) provides that a plaintiff may amend his complaint once as of right “within: (A) 21 days
after serving [the complaint], or (B) if the pleading is one to which a responsive pleading is
required, [within] 21 days after service of a responsive pleading or 21 days after service of a
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motion” to dismiss, a motion for a more definite statement or a motion to strike, “whichever is
earlier.” The complaint filed in this action is a pleading to which a responsive pleading is
required. See Rule 12(a)(1), Fed. R. Civ. P. The Defendants filed a motion to dismiss the
complaint on April 10, 2017.
The Plaintiff’s motion to amend was filed on May 3, 2017. The Court considers the
Plaintiff’s motion to amend as having been filed within the twenty-one day period after the
motion to dismiss was served on the Plaintiff by mail on April 14, 2017. See Fed. R. Civ. P. 6(d)
(“When a party must act within a specified time after being served and service is made under
Rule 5(b)(2)(C) (mail) . . . 3 days are added after the period would otherwise expire under Rule
6(a).”) Thus, under Rule 15(a)(1)(B), the Plaintiff need not seek the Court’s permission to
amend and may amend as of right. Accordingly, the motion to amend is denied as moot.
The Plaintiff has not filed a proposed amended complaint with his motion. Thus, the
Court will permit the plaintiff thirty days to file an amended complaint. In view of this order,
the motion to dismiss the complaint is denied without prejudice.
VII.

Conclusion
For the reasons set forth above, the Court hereby rules as follows:
The Defendants’ Second Motion for Extension of Time [ECF No. 20] until April 5, 2017

to file a response to the complaint is GRANTED absent objection and for good cause shown.
The Defendants’ Supplemental Statement in Support of the Second Motion for Extension of
Time [ECF No. 23] is DENIED as improperly filed as a motion for extension of time.
The Plaintiff’s Motion for Appointment of Counsel [ECF No. 16] is DENIED without
prejudice to refiling at a later stage of litigation. Any renewal of this motion shall be
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accompanied by a summary of any attempts to obtain counsel or legal assistance, including the
names of the attorneys contacted, the dates upon which the plaintiff made those contacts and the
reasons why assistance was unavailable.
The Plaintiff’s Motion for Extension [ECF No. 18] to conduct discovery is DENIED.
The Plaintiff’s “Motion for Extension Nunc Pro Tunc” [ECF No. 21] to receive documents is
DENIED. The Motion for Discovery, Disclosure and Inspection [ECF No. 22], which is
actually a request for discovery is DENIED as improperly filed with the Court.
Because the Plaintiff may amend the complaint as of right, the Motion to Amend [ECF
No. 27] is DENIED as moot, and the Motion to Dismiss, [ECF No. 24] is DENIED without
prejudice. The Plaintiff may file an amended complaint within thirty (30) days of the date
of his order. If the Plaintiff chooses not to file an amended complaint within the time specified,
the case will proceed as to the claims remaining in the Complaint as set forth in the Court’s
Initial Review Order, ECF No. 7, and the Defendants may simply file a short statement renewing
their motion to dismiss and incorporating by reference their prior briefing. Further, if the
Plaintiff chooses to amend his complaint, and if Defendants choose to renew their motion to
dismiss, Defendants may incorporate by reference their prior briefing and/or may file a
supplemental brief.
Further, the parties shall complete discovery within ninety (90) days of the date of this
order, i.e., November 8, 2017. Motions for summary judgment, if any, must be filed within onehundred and twenty (120) days of the date of this order, i.e., December 8, 2017.

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SO ORDERED at Hartford, Connecticut this 10th day of August, 2017.

/s/_____________________________
Michael P. Shea
United States District Judge

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