Milner v. Black et al

Filing 37

ORDER denying 19 Motion to Appoint Counsel ; denying 21 Motion for Conference; granting in part and denying in part 24 Motion to Compel; denying 25 Motion to Appoint Counsel ; granting 26 Motion for Conference; denying 27 Motion to Compel; denying 28 Motion for Consent Decree; denying 29 Motion for Default Entry 55(a) ; denying 31 Motion to Compel; denying 32 Motion to Compel; denying 33 Motion for Default Entry 55(a). Milner's motions for appointme nt of counsel [ECF Nos. 19, 25] are DENIED without prejudice to refiling. Any renewed motion shall include information, such as a copy of a letter from Inmates' Legal Assistance Program, about why assistance was declined. Milner's m otion for a settlement conference [ECF No. 21] is DENIED without prejudice. His motion for a Rule 16 Pretrial Conference [ECF No. 26] is GRANTED, and the court will contact the parties to schedule such a conference. Milner's first motion to comp el [ECF No. 24] is GRANTED IN PART. If Milner specifies which portions of the Manual he would like to receive, the defendants shall provide it to him, or shall timely present any objections to the court. Milner's second and third motions to compel [ECF Nos. 27, 31] are DENIED. The fourth motion to compel [ECF No. 32] is DENIED without prejudice to refiling. Defendants shall consider the February 23, 2017 discovery request, which is appended to the fourth motion to compel to have bee n served on them. Defendants shall respond to the request within thirty (30) days from the date of this Order and shall file a notice with the court when the response is served.Milner's motions for consent decree and entry of default [ECF Nos. 28, 29, 33] are DENIED. Signed by Judge Stefan R. Underhill on 5/30/2017. (Buttrick, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

:
:
:
:
:
:
:
:
:

SHAWN MILNER,
Plaintiff,
v.
ALLISON BLACK, et al.,
Defendants.

CASE NO. 3:16-cv-1621 (SRU)

RULING AND ORDER
Plaintiff Shawn Milner (“Milner”), currently incarcerated at Northern Correctional
Institution in Somers, Connecticut, filed this case pro se under 42 U.S.C. § 1983 alleging that the
defendants were deliberately indifferent to his serious medical needs. This ruling addresses
several motions filed by Milner: two motions for appointment of counsel (docs. 19 and 25), a
motion for settlement conference (doc. 21), four motions to compel (docs. 24, 27, 31, and 32), a
motion for pretrial conference (doc. 26), a motion for consent decree (doc. 28), and two motions
for entry of default (docs. 29 and 33).

I.

Motions for Appointment of Counsel (docs. 19 and 25)
Milner has filed two motions seeking 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., Ferrelli v. River Manor Health Care
Center, 323 F.3d 196, 204 (2d Cir. 2003); Hendricks v. Coughlin, 114 F.3d 390, 393 (2d Cir.

1997).
The Second Circuit also has made clear that before an appointment is even considered,
the indigent person must demonstrate that he is “unable to obtain counsel.” Saviano v. Local
32B-32J, 75 F. App’x 58, 59 (2d Cir. 2003) (quoting Cooper v. A. Sargenti Co., 877 F.2d 170,
173 (2d Cir. 1989)). In his first motion for appointment of counsel, Milner states that he
contacted three attorneys, Sidney Schulman, Norman Pattis, and Aaron Romano, but received no
responses for over thirty days. His supplemental motion for appointment of counsel does not
indicate that he contacted any other attorneys, nor does Milner indicate in either motion whether
he contacted Inmates’ Legal Assistance Program, the organization under contract with the
Department of Correction to provide legal assistance to Connecticut inmates. Because Milner has
not sought legal assistance from Inmates’ Legal Assistance Program, the court cannot determine
whether he is able to obtain legal assistance on his own.
In addition, the Second Circuit has reiterated the importance of requiring an indigent
plaintiff to “pass the test of likely merit.” Cooper, 877 F.2d at 173–74. The court explained 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 (quotation marks and citation omitted). The
current record, consisting of the Complaint and Answer, is insufficient to determine whether
Milner’s claims possess likely merit. Thus, appointment of counsel is premature.
Milner’s motions for appointment of counsel are therefore denied without prejudice to
refiling at a later stage of litigation. Any renewed motion shall include additional information,
such as a copy of a letter from Inmates’ Legal Assistance Program, about why assistance was
declined.
2

II.

Motions for Settlement and Pretrial Conferences (docs. 21 and 26)
Milner has filed a motion asking the court to schedule a settlement conference in this

case. When asked about interest in a settlement conference, defendants’ counsel informed the
court’s pro se law clerk that, upon receipt of Milner’s motion, he sent Milner a letter inquiring
about the “reasonable proposal” mentioned in the motion but received no response. Milner’s
motion is thus denied without prejudice. If Milner is interested in settlement, he should respond
to counsel’s letter. If settlement seems possible, counsel is directed to inform the court so a
settlement conference can be scheduled.
Milner also has filed a motion for pretrial conference pursuant to Rule 16 of the Federal
Rules of Civil Procedure. That motion is granted. Following the issuance of this Order, the court
will contact the parties to arrange a telephonic Rule 16 conference in which to discuss the
pleadings, deadlines, and possibilities for settlement in this case.

III.

Motions to Compel (docs. 24, 27, 31, and 32)
Milner has filed four motions to compel. In the first motion, he states that he requested

copies of the UConn/CMHC Policy and Procedures Manual but that the defendants want to
charge him for the copy. He attaches to his motion a copy of a letter indicating that he requested
the document under the Freedom of Information Act, not through the discovery process. That
motion (doc. 24) is granted in part: if Milner specifies which portions of that Manual he would
like to review, the defendants should provide him with that portion or should timely present their
objection to the court.
3

In the second motion to compel, Milner states that he requested materials over thirty days
ago and has not received them. He does not attach a copy of his production request or describe
the documents requested. In response to the first two motions to compel, the defendants state that
they did not receive any discovery requests and note that if the requested document is the one
referenced in the prior motion, the request for that document was not served on them through the
discovery process in this case. See (doc. 30). Absent identification of the documents requested
and evidence that a request for those documents was mailed to defendants’ counsel, the second
motion to compel (doc. 27) is denied without prejudice.
The third motion to compel is an incomplete copy of the fourth motion. The exhibits were
not included with the third motion. Accordingly, the third motion to compel (doc. 31) is denied
as moot in light of the replacement fourth motion to compel.
Milner attaches a copy of his February 23, 2016, discovery request to the fourth motion
to compel. That request indicates that it was mailed to defendants’ counsel and emailed to the
court. Because discovery requests are not filed with the court, see D. Conn. L. Civ. R. 5(f)1, the
request was not entered on the court’s docket. Due to the conflicting statements regarding
whether this request was mailed to defendants’ counsel, the court will afford the defendants an
opportunity to respond to the discovery request. Because the request is appended to this motion,
the defendants should consider the request served on them. Defendants are directed to serve their
responses within thirty days from the date of this order and to file a notice with the court
when the response is served. Milner’s fourth motion to compel (doc. 32) is thus denied without
prejudice to refiling should the defendants fail to timely respond to the discovery request.

4

IV.

Motion for Consent Decree (doc. 28)
Milner asks the court to appoint a court official to oversee daily operations at Northern

Correctional Institution to ensure that all employees comply with the United States Constitution.
He alleges that correctional staff lack ethical training and have developed an off-the-record policy
of violating the constitutional rights of prisoners as well as departmental policy. He alleges that
staff believe they can act with impunity because no one will believe a prisoner over a correctional
officer. Milner contends that court-ordered supervision will reduce the amount of force used
against inmates and the number of lawsuits filed.
Milner states that he filed this motion pursuant to Rules 11 and 12 of the Federal Rules of
Civil Procedure; however, neither Rule 11 nor Rule 12 discuss consent decrees. A consent decree
is entered as a resolution of the case. “The only difference between a consent decree and any other
written stipulation of settlement that may follow a binding oral agreement[] is that it is endorsed
by the court.” Aguiar v. New York, 2008 WL 4386761, at *11 (S.D.N.Y. Sept. 25, 2008). A
federal court’s endorsement, in turn, means that whereas settlement agreements are contacts
and—absent an independent basis for exercise of federal jurisdiction—any enforcement
proceeding must be pursued in state court, Kokkonen v. Guardian Life Ins. Co. of America, 511
U.S. 375, 382 (1994), a consent decree is directly enforceable though the federals court’s
contempt power, Benjamin v. Jacobson, 172 F.3d 144, 157 (2d Cir.), cert. denied, 528 U.S. 824
(1999).
A consent decree resolves a case and is entered only with the agreement of both parties
following settlement negotiations. It cannot be requested unilaterally by motion. Milner’s motion
for consent decree is therefore denied.
5

V. Motions for Entry of Default (docs. 29 and 33)
Milner has filed two motions seeking entry of default against the defendants. In the first
motion, Milner states that the defendants were ordered to respond to his motion to compel by
April 28, 2017, but have not done so. In response, the defendants state that they never received
the production underlying the motion to compel. A review of the docket reveals no order that the
defendants respond to a motion to compel by April 28, 2017. Thus, they are not in default and
the first motion for entry of default (doc. 29) is denied.
In the second motion, Milner again seeks entry of default against the defendants for
failure to respond to his discovery request. Milner’s recourse if the defendants fail to respond to
discovery requests is to file a properly supported motion to compel. The fourth motion to compel
discussed above satisfies this requirement. Because the court has afforded the defendants
additional time to respond to the discovery request, they are not in default. The second motion
for default (doc. 33) is denied.

VI.

Conclusion
Milner’s motions for appointment of counsel [ECF Nos. 19, 25] are DENIED without

prejudice to refiling. Any renewed motion shall include information, such as a copy of a letter
from Inmates’ Legal Assistance Program, about why assistance was declined.
Milner’s motion for a settlement conference [ECF No. 21] is DENIED without
prejudice. His motion for a Rule 16 Pretrial Conference [ECF No. 26] is GRANTED, and the
court will contact the parties to schedule such a conference.
6

Milner’s first motion to compel [ECF No. 24] is GRANTED IN PART. If Milner
specifies which portions of the Manual he would like to receive, the defendants shall provide it
to him, or shall timely present any objections to the court. Milner’s second and third motions to
compel [ECF Nos. 27, 31] are DENIED. The fourth motion to compel [ECF No. 32] is
DENIED without prejudice to refiling. Defendants shall consider the February 23, 2017
discovery request, which is appended to the fourth motion to compel to have been served on
them. Defendants shall respond to the request within thirty (30) days from the date of this Order
and shall file a notice with the court when the response is served.
Milner’s motions for consent decree and entry of default [ECF Nos. 28, 29, 33] are
DENIED.
SO ORDERED this 30th day of May 2017 at Bridgeport, Connecticut.
/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge

7