Verrier v. Perrino et al

Filing 29

ORDER denying 24 Motion to appoint counsel; denying without prejudice 26 Motion to Compel; denying 27 Motion to appoint counsel. See Order for details. Signed by Magistrate Judge Carol Mirando on 9/4/2015. (ALB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSEPH M. VERRIER,
Plaintiff,
v.

Case No: 2:14-cv-744-FtM-29CM

PETER PERRINO and DIANE
BELL,
Defendants.
ORDER
Before the Court is Plaintiff Joseph M. Verrier’s Motion to Appoint Council
[sic] (Doc. 24), filed on August 21, 2015; Motion to Compell [sic] (Doc. 26), filed on
September 2, 2015; and Motion to Appoint Council [sic] (Doc. 27), filed on September
2, 2015. For the reasons that follow, the motions to appoint counsel will be denied
and the motion to compel will be denied without prejudice.
I.

Motions to Appoint Counsel

Plaintiff requests that the Court appoint counsel to represent him in this
matter because he is “unable to litigate this case on [his] own behalf because it is
beyond [his] ability to comprehend the technical legal issues and procedure.” Doc.
24 at 1. Plaintiff also states that he has “been unable to find an attorney because
they claim they either do not have the expertise to handle the case, do not wish to
alienate Florida DOC due to existing relationships with clients, or have DOC as a
client.” Doc. 27 at 2.

Plaintiff’s previous request for the appointment of counsel was denied without
prejudice.

Doc. 5.

In that Order, the Court explained that only exceptional

circumstances justify the appointment of counsel in civil cases, such as where there
are complex factual and legal issues. See Doc. 5 at 5 (quoting Fowler v. Jones, 899
F.2d 1088, 1096 (11th Cir. 1990)). After considering the factors set forth in Jones v.

Salley, the Court determined that Plaintiff already had demonstrated an ability to
file documents and a basic understanding of the legal process, and Plaintiff’s
allegations stem from the manner in which the Florida DOC supervises him and
therefore he has been a party to all actions giving rise to his complaint. Doc. 5 at 45; see also Jones v. Salley, No. 2:12-cv-510-FtM-29DNF, 2013 WL 1277892, at *2
(M.D. Fla. Mar. 28, 2013)). Accordingly, the Court denied his motion to appoint
counsel without prejudice, and noted “[i]f as the case develops the Court finds that
appointment of counsel is warranted, the Court may reconsider this issue upon proper
motion or sua sponte.”

Doc. 5 at 5 n.3.

The Court also encouraged Plaintiff to

attempt to retain counsel. Id. at 6.
Plaintiff’s first renewed motion to appoint counsel states that he has “diligently
sought to obtain counsel” but has been unable to do so, and is hindered in his ability
to prosecute this case because he “is prohibited from library access and is unable to
properly research case law”; “defendants continue to supervise plaintiff, [and] there
is a conflict with plaintiffs [sic] ability to properly conduct examinations and
depositions of defendants”; “Defendants have motioned to dismiss based upon highly
technical and complicated legal grounds for which [sic] Plaintiff is unable to

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comprehend”1; and “there are approximately 7,000 people on the interstate compact
within the state of Florida and under the supervision of the Florida Department of
Corrections, this issue has wide ranging significance.”

Doc. 24 at 2.

Plaintiff’s

second renewed motion to appoint counsel again asserts that he is unable to research
or prosecute this case effectively “[d]ue to the actions of the defendants prohibiting
the use of a computer, the internet or the attendance at libraries” and identifies four
attorneys and law firms that he contacted regarding possible representation. Doc.
27 at 1.
Upon review of the case, the Court again finds that the facts and legal issues
presented in this Section 1983 action are not “so novel and complex as to require the
assistance of a trained practitioner” and Plaintiff has failed to show that his case
“constitutes an exceptional circumstance” warranting the appointment of counsel.

See Jones, 2013 WL 1277892, at *3 (denying plaintiff’s motion to appoint counsel in
Section 1983 action where the facts and claims were not complex, case was in initial
stages of litigation and the plaintiff demonstrated ability to litigate action pro se);

Fowler, 899 F.2d at 1096 (affirming denial of motion to appoint counsel where
Plaintiff failed to show exceptional circumstances, claims were “relatively
straightforward” and involved incidents the plaintiff himself had witnessed, and the

1

Defendants’ Motion to Dismiss Amended Complaint (Doc. 23), filed on August 13,
2015, asserts that Plaintiff’s Amended Complaint fails to state claims for which relief may be
granted; Defendants are entitled to qualified immunity; and Plaintiff failed to exhaust his
administrative remedies, a mandatory precondition to filing suit.

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plaintiff demonstrated an ability to represent himself). Plaintiff is therefore not
entitled to the appointment of counsel in this matter.
II.

Motion to Compel

Plaintiff’s motion to compel requests that defense counsel be ordered to comply
with Court orders, and that the Court permit discovery to proceed without the
required case management meeting. See Doc. 26. The motion to compel, as well as
Plaintiff’s two renewed motions to appoint counsel, fail to comply with Local Rule
3.01(g), which requires parties to confer with opposing counsel prior to filing motions
in civil cases, with certain exceptions not applicable here. M.D. Fla. R. 3.01(g). The
motion states that Plaintiff has attempted to contact defense counsel, but his calls
and emails were not answered or returned. Attempts to confer are insufficient to
satisfy a moving party’s obligation to confer. M.D. Fla. R. 3.01(g) (“A certification to
the effect that opposing counsel was unavailable for a conference before filing a
motion is insufficient to satisfy the parties’ obligation to confer.”).

In light of

Plaintiff’s apparent prohibition from internet access, the Court previously provided a
copy of the Guide for Proceeding without a Lawyer. Doc. 5-1. The entirety of Local
Rule 3.01(g) is quoted in the Guide. See id. at 18-19. Accordingly, the Court will
deny the motion to compel without prejudice to being refiled in compliance with the
Local Rules.
Plaintiff previously was informed that he must follow the Middle District of
Florida Local Rules and the Federal Rules of Civil Procedure. See Doc. 17 at 1-2.
Plaintiff again is reminded that although pro se pleadings generally are held to a less

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stringent standard than pleadings drafted by an attorney and will be liberally
construed, Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998), it
still is mandatory that pro se litigants proceed in accordance with Federal and Local
Rules. Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002) (noting that despite
certain leniency afforded pro se parties, they must follow procedures).

Plaintiff

therefore is cautioned that all filings must comply with federal and local rules, and
the Court will continue to strike or deny filings that fail to comply with applicable
rules, and repeated failure to comply may cause the Court to recommend that this
case be dismissed.
Even if the Court were to address the motion to compel on the merits, Rule 26,
Federal Rules of Civil Procedure, provides that “[a] party may not seek discovery from
any source before the parties have conferred” except in certain circumstances not
presently before the Court, or pursuant to stipulation or Court Order. Fed. R. Civ.
P. 26(d)(1).

The Court finds no reason to permit early discovery in this case.

Moreover, there is no evidence before the Court that counsel for Defendants has failed
to comply with any of this Court’s Orders.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff, Joseph M. Verrier’s Motion to Appoint Council [sic] (Doc. 24)

is DENIED.
2.

Plaintiff, Joseph M. Verrier’s Motion to Compell [sic] (Doc. 26) is

DENIED without prejudice.

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3.

Plaintiff, Joseph M. Verrier’s Motion to Appoint Council [sic] (Doc. 27)

is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 4th day of September,
2015.

Copies:
Counsel of record
Pro se Plaintiff

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