Mercado v. Corrections et al
Filing
79
ORDER granting 71 Motion for help understanding 65 Order with the requested explanation set forth in the attached order. Signed by Judge Vanessa L. Bryant on 04/30/2017. (Lee, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RAUDELL MERCADO,
Plaintiff,
v.
DEP’T OF CORRECTIONS, ET AL.,
Defendants.
:
:
: Case No. 3:16-cv-1622 (VLB)
:
:
: April 30, 2017
:
RULING ON PENDING MOTIONS
The Plaintiff, Raudell Mercado, is currently incarcerated at MacDougall-Walker
Correctional Institution (“MacDougall-Walker”). He initiated this action by filing a
civil rights complaint against multiple employees of the State of Connecticut
Department of Correction.
In January 2017, the Court concluded that the following
claims would proceed against the Defendants: the Eighth and Fourteenth
Amendment claims of deliberate indifference to mental health needs and safety and
the unconstitutional conditions of confinement relating to the Plaintiff’s confinement
at Northern Correctional Institution (“Northern”), a Fourteenth Amendment due
process claim relating to the Plaintiff’s transfer to Northern and Cheshire
Correctional Institution and his placement in the administrative segregation
programs at those facilities and a First Amendment retaliation claim should proceed.
On January 6, 2017, the Court granted the Plaintiff’s motion for appointment of
pro bono counsel. On April 5, 2017, the Defendants filed an answer to the complaint.
I.
Motion for Understanding [ECF No. 71]
The Plaintiff seeks clarification with regard to the status of the Clerk’s attempts
to find an attorney willing to represent him in this case. The Court has the authority
to request an attorney to represent any person unable to afford counsel. 28 U.S.C. §
1915(e)(1). By its express terms, the statute does not grant indigents the absolute
right to counsel in civil cases; nor does it grant the court the power to compel
counsel to accept the appointment. See 28 U.S.C. § 1915(e)(1) (“The court may
request an attorney to represent any person unable to afford counsel.”) (emphasis
added); Mallard v. U.S. Dist. Court for Southern Dist. of Iowa, 490 U.S. 296, 310 (1989)
(“We hold only that § 1915(d) does not authorize the federal courts to make coercive
appointments of counsel.”); 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 litigant in a civil case). The docket reflects that on
March 14, 2017, the Clerk appointed Attorney Bruce Raymond to represent the
Plaintiff, however he declined the appointment. On March 22, 2017, the Clerk vacated
the order appointing Attorney Raymond as counsel.
The Clerk has resumed her
efforts to find another attorney to represent the Plaintiff. Thus, as of now, the Clerk
has been unsuccessful in securing counsel to represent the Plaintiff. Accordingly,
unless and until such counsel is secured, the Plaintiff must continue to litigate the
case himself.
The Plaintiff has alternate means of securing legal assistance. He may choose
to enlist the assistance of Inmate Legal Services, a legal assistance program
provided by the State of Connecticut through a contract with a private law firm. In
addition, the Plaintiff may also continue to seek private representation.
In some
circumstances a prevailing party may recover legal fees and a plaintiff may engage
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an attorney on a contingency fee basis on which counsel is entitled to a percentage
of any recovery.
Having advanced past the initial review state, a resumption of
efforts to retain counsel may meet with greater success.
If an attorney agrees to represent the Plaintiff, the Clerk will enter an order
appointing the attorney as pro bono counsel and the Plaintiff will receive notice of the
order. As the Plaintiff can rest assured that he will be informed by the Clerk that he
will be notified that an attorney has agreed to represent him he need not file any
further requests with the Court to ascertain the status of the Clerk’s attempts to
obtain counsel.
II.
Motion to Seal Video Footage and Records [ECF No. 72]
The Plaintiff states that he asked the Defendants to preserve video footage that
supports the allegations in the complaint.
He now seeks a court order directing the
Defendants to send “all video footage to this Honorable Court so they can be sealed
and to avoid the defendants from tampering with these videos.” The Plaintiff also
seeks a court order directing the Defendants to forward his prison medical records to
the Court to be placed under seal.
The Plaintiff is advised to consult Inmate Legal Services and the Federal Rules
of Civil Procedure and the Federal Rules of Evidence. These publications may be
obtained from the U.S. Government Publishing Office.
Rule 26(b)(1) of the Federal
Rules of Civil Procedure provides that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional
to the needs of the case. . . .”
Each party has a duty to preserve discoverable
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evidence once “the party has notice that the evidence is relevant to litigation or when
a party should have known that the evidence may be relevant to future litigation.”
Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001); see Kronisch v.
United States, 150 F.3d 112, 126-27 (2d Cir. 1998) (“This obligation . . . arises when the
party has notice that the evidence is relevant to litigation—most commonly when suit
has already been filed, providing the party responsible for the destruction with
express notice, but also on occasion in other circumstances, as for example when a
party should have known that the evidence may be relevant to future litigation.”).
Where one party fails to produce documents, the other “may move for an order
compelling disclosure or discovery,” so long as the motion includes “a certification
that the movant has in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain it without court
action.” Fed. R. Civ. P. 37(a)(1), (3)(B)(iv).
The Court assumes that parties will adhere to the law, including the Federal
Rules of Civil Procedure, unless facts are presented suggesting that this assumption
is not warranted.
The Plaintiff has provided no information to suggest that the
Defendants will not continue to preserve the relevant video footage or the Plaintiff’s
medical records.
Nor is there any evidence that the Defendants have “tampered
with” videotapes or any other evidence that might be relevant to this case, including
his medical records.
To the extent that the Plaintiff intends the Motion to Seal to function as a
Motion to Compel, the Court finds he has not complied with Fed. R. Civ. P. 37(a).
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Because there is no basis to order the Defendants to send videotapes or the
Plaintiff’s medical records to the Court or to place the videotapes or medical records
under seal, the motion is DENIED.
The Plaintiff also asks the Court to intervene and to retrieve and preserve
video footage from two dates in January 2017 and one date in February 2017 that
allegedly depict conduct that occurred in the medical unit at Northern. On February
1, 2017, prison officials at Northern transferred the Plaintiff to MacDougall-Walker to
begin the second phase of the administrative segregation program.
The Plaintiff
claims that the video footage will show that Dr. Frayne forced him to progress to
Phase Two of the administrative segregation program at MacDougall-Walker.
The
Plaintiff suggests that he did not want to progress to Phase Two.
The Plaintiff informs the Court that he is being treated by a psychiatrist at
MacDougall-Walker. The psychiatrist has met with the Plaintiff and has prescribed
medication to treat his mental illnesses. The Plaintiff claims that he is taking his
medication.
As a preliminary matter, the claim regarding the Plaintiff’s transfer to
MacDougall-Walker as part of his progression through the administrative segregation
phase program is not a claim in the complaint. Thus, the videotapes related to his
transfer to MacDougall-Walker in February 2017 are irrelevant to this case. See De
Beers Consol. Mines Ltd. v. United States, 325 U.S. 212, 220 (1945) (preliminary
injunction appropriate to grant intermediate relief of “the same character as that
which relief may be granted finally,” but inappropriate where the injunction “deals
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with a matter lying wholly outside the issues in the suit”); Omega World Travel, Inc. v.
Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997) (“[A] preliminary injunction may
never issue to prevent an injury or harm which not even the moving party contends
was caused by the wrong claimed in the underlying action”); Lewis v. Johntson, No.
08-CV-482 (TJM)(ATB), 2010 WL 1268024, at *2 (N.D.N.Y. Apr. 1, 2010) (denying motion
for preliminary injunction based on actions taken by staff at Great Meadow
Correctional Facility in 2010 where complaint alleged wrongdoing by staff at Franklin
and Upstate Correctional Facilities in 2006 and 2007). Accordingly the Court declines
to enter orders compelling the preservation of irrelevant material. This denial does
not address the relevance of the material for other purposes or the Department of
Corrections duty to preserve it for other purposes.
Further, the Plaintiff does not allege that prison officials at MacDougall-Walker
have denied or are depriving him of access to mental health treatment or that he is
otherwise not receiving appropriate treatment at MacDougall-Walker.
In fact, he
asserts facts to suggest the contrary. He concedes that he has received treatment
from a psychiatrist who has recommended that he take medication to treat his mental
illnesses.
The Plaintiff is currently taking the medication prescribed by the
psychiatrist. Thus, the Court concludes that the Plaintiff has not alleged that he will
suffer imminent harm if the relief requested in his motion to seal and preserve
evidence is not granted in this action.
Accordingly, for the reasons set forth above, the motion seeking a court order
directing the Defendants to submit videotapes and medical records to be placed
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under seal and for court intervention regarding videotapes of incidents that occurred
just before the Plaintiff’s transfer from Northern to MacDougall-Walker in February
2017 is denied in all respects.
Conclusion
The Motion to Seal Video Footage and Medical Records [ECF No. 72] is
DENIED.
The Motion for Understanding [ECF No. 71] seeking clarification of the
Clerk’s attempts to find an attorney to represent him in this case is GRANTED. On
March 22, 2017, the Clerk vacated the order appointing Attorney Raymond as pro
bono counsel.
The Clerk has resumed her efforts to find another attorney to
represent the Plaintiff. Thus, the Plaintiff must continue to litigate the case himself.
When a new attorney agrees to represent the Plaintiff, the Clerk will enter an order
appointing the attorney as pro bono counsel and the Plaintiff will receive notice of the
order.
SO ORDERED at Hartford, Connecticut this 30th day of April, 2017.
_______/s/_____________________
VANESSA L. BRYANT
UNITED STATES DISTRICT JUDGE
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