Sires v. Hefferman et al

Filing 20

Chief Judge Mark L. Wolf: ORDER entered. The motion for leave to proceed in forma pauperis 15 is ALLOWED. Summonses shall issue as to Ayala, Parent, and Fedele. With the exception of claims against John and Jane Doe, claims against all other def endants are DISMISSED WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted. Further, the first, second and third causes of action are DISMISSED as to Parent and Fedele, and the fourth and fifth causes of action are DISMISS ED as to Ayala and John and Jane Doe. If Sires desires to cure the pleading deficiencies as to the dismissed claims, he may amend the complaint in accordance with Fed. R. Civ. P. 15. The motion for service of process by the United States Marshal [1 1] is ALLOWED to the extent that Sires asks that service be completed by the United States Marshal. The United States Marshal shall serve a copy of the summonses, complaint, and this order upon the defendants for whom summonses have issued as direct ed by plaintiff with all costs of service to be advanced by the United States. The plaintiff is responsible for providing all necessary forms and documents for service to the United States Marshal. The plaintiff shall complete service within 120 days of the date of this order. The motion for appointment of counsel 4 is DENIED WITHOUT PREJUDICE. The motion for court monitoring of mail 16 is DENIED WITHOUT PREJUDICE. (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
WILLIAM S. SIRES, JR.,
Plaintiff,

)
)
)
v.
)
)
MARY ELIZABETH HEFFERMAN, et al, )
Defendants.
)

C.A. No. 10-11993-MLW

MEMORANDUM AND ORDER
WOLF, D.J.
I.

June 21, 2011

INTRODUCTION
On November 13, 2010, William S. Sires, who is now confined at

the Souza-Baranowski Correctional Center ("SBCC") filed a selfprepared complaint, motions for leave to proceed in forma pauperis,
and a motion for appointment of counsel.

After the motions for

leave to proceed in forma pauperis were denied without prejudice,
Sires filed a new motion for leave to proceed in forma pauperis.
He has also since filed a motion for service by the United States
Marshal and a motion for court monitoring of his mail.
For the reasons stated below, the court is (1) granting the
motion to proceed in forma pauperis; (2) ordering that summonses
issue as to three defendants and that service be completed by the
United States Marshal; (3) dismissing claims against all other
defendants, except the John and Jane Doe defendants; and (4)
denying without prejudice the motions for appointment of counsel
and court monitoring of mail.

I.

BACKGROUND
The present complaint concerns incidents at two different

prisons - SBCC and MCI Shirley. Sires has named 29 defendants.1
The court summarizes the facts as alleged by Sires.
A.

Factual Allegations
1.

SBCC

In June 2009, Sires was incarcerated at SBCC. Thomas Dickhaut
was the SBCC superintendent.
deputy superintendents.

Bruce Gelb and Anthony Mendonso were

Jeffrey Guirin and Robert Blood were

captain correctional officers.
On June 23, 2009, Sires was notified by a correctional officer
that he was being transferred to MCI Shirley.

At the time, Sires

had a "handicapped cell" due to an elongated medical history
requiring this accommodation.

Sires refused the transfer due to

his previous stays in that facility.
Later that day, correctional officers approached Sires and
ordered Sires to "cuff up" – i.e., to permit himself to be
handcuffed through the food slot in the door.

Sires refused.

He

was then informed by a lieutenant and a mental care worker that the
move extraction team would come.

Once the extraction team was at

Sires's cell, Sires was ordered one more time to "cuff up"; he
refused.

1

Sires filed the present complaint in two parts, which were
docketed as Docket No. 1 and Docket No. 1-1.
2

The move extraction team sprayed pepper spray or mace through
the cell door food slot to disable Sires.

No consideration was

given for Sires's chronic health conditions–his heart condition,
asthma, chronic obstructive pulmonary disease, and orthopedic
problems.

All eight members of the extraction team knew Sires and

were familiar with Sires's health problems.
The extraction team entered Sires's cell while he sat on his
bunk without displaying any resistance. Sires was hit in the chest
with a plastic riot shield and forced face down on his bunk while
extraction team members twisted his arm and foot, almost breaking
his

left

foot

and

ankle.

The

injuries

the

extraction

team

inflicted caused Sires to suffer chest pains and to blank out
temporarily. The extraction was recorded on videotape. Jose Ayala
was one of the members of the extraction team.
Sires was transported via ambulance to the intensive cardiac
care unit of a hospital, where it took 6.5 hours for Sires's heart
to stabilize.

Sires was also unable to walk or stand up and was on

bed rest for another 72 hours.
2.

MCI Shirley

After receiving medical treatment, Sires was transferred to
MCI Shirley.

Duane MacEachern was the superintendent.

Alvin

Notice and Scott Anderson were deputy superintendents.
Once Sires arrived at MCI Shirley, sergeant Thomas Fedele
issued

a

disciplinary

report

against

3

Sires

for

refusing

the

transfer from SBCC to MCI Shirley.
On July 8, 2009 two correctional officers tried to house
another inmate in Sires's "handicapped cell."

Sires refused.

Another disciplinary report was issued, even though, in 2007, the
Massachusetts Health Department Community Sanitation Division had
refused to waive the requirement of only one inmate per cell of
certain size.
MacEachern.

This waiver was refusal was set forth in a letter to
Despite the waiver refusal, Massachusetts Department

of Correction ("DOC") Commissioner Harold W. Clarke, DOC Deputy
Commissioner James Bender, and past MCI Shirley administrators
proceeded to "double cell" prisoners - i.e., place two prisoners in
a cell designed for a single inmate.
On July 27, 2009, captain correctional officer Jean Parent,
who was in charge of all housing assignments at MCI Shirley,
granted Sires single cell status.

On March 25, 2010, Parent

withdrew Sires's single cell status.
On March 25, April 5, June 15, and July 25, 2010, Sires
refused the orders of MCI Shirley correctional staff to accept a
double cell housing assignment.

Sires was ordered to double cell

even though he had had single cell status since he began serving
his life sentence in 1974 and he had severe medical and mental
health restrictions.

Fedele was the disciplinary officer at some

of the disciplinary hearings regarding these infractions.

Sires's

refusals to accept a double cell assignment resulted in him being

4

confined in isolation in the special management unit ("SMU") for 37
weeks.

Michael Buscanera was a lieutenant correctional office in

charge of the SMU.

Donald Crowley was a captain correctional

officer who was also in charge of the SMU.
On August 22, 2010 another inmate was caught hanging a line
out of his cell window with a pill attached.

Correctional officer

Shawn Woodward caught the violation and assumed that the pill was
coming to Sires.

Woodward wrote a disciplinary report against

Sires in regards to that event.

On August 23, 2010, Fedele served

the disciplinary report.
Sires asked for a continuance of the disciplinary hearing on
Woodward's disciplinary report the week of September 20, 2010.
Fedele initially only granted a seven-day

continuance until Sires

corresponded with Bender and MacEachern about this issue.

Sires

also sent a copy of the correspondences about double celling and
the disciplinary hearing continuance to Massachusetts Secretary of
Public Safety Mary Hefferman.
On August 28, 2010 a classification board was convened because
of Sires's refusals to accept a double cell.
that Sires be transferred to MCI Concord.
board's

decision.

The

appeal

was

granted

It was recommended
Sires appealed the
in

part;

it

was

determined that Sires would remain at MCI Shirley and that Sires's
single cell status would be reviewed.
Sires made attempts to see prison psychiatrist Dr. Geraldine

5

Walker, UMass Correctional Health ("UMCH") physician Dr. Maria
Angeles, and UMCH Executive Director Dr. Arthur K. Brewer, for
affirmation of Sires's medical/mental health need for a single
cell.

His

requests

for

examinations

were

rebuffed

or

went

unanswered. Angeles and UMCH nurse practitioner Carlos Flores were
influenced by administrative and correctional goals rather than
Sires's medical needs.
On

September

24,

2010,

a

disciplinary

hearing

was

held

concerning the disciplinary report Sires received on August 23,
2010.

Sergeant

correctional

officer

Kevin

Farley

was

the

disciplinary officer at the hearing.

Woodward gave false and

unsupported testimony at the hearing.

Sires was found guilty.

MacEachern denied the appeal.
On November 11, 2010, a second classification board was
convened based on Sires's cell assignment refusals and the guilty
finding on the disciplinary report concerning the August 23, 2010
disciplinary report.

It was determined that Sires would remain at

MCI Shirley.
In both classification review hearings, the process was unduly
influenced by the fraudulent disciplinary report of August 23,
2010.

MacEachern and Anderson unduly influenced the procedures to

retaliate against Sires and so that Sires would be removed from the
facility.
On November 13, 2010, Sires, attempted to meet with Dr.

6

Angeles about his need for a single cell.

Dr. Angeles refused to

speak with him.2
B.

Claims and Defendants

In addition to all of the individuals referenced by name in
the summary of the factual allegations, Sires names the following
parties

as

defendants:

Paul

Dipaola,

deputy

commissioner

of

correction; John and Jane Doe, correctional officers at SBCC who
were members of the extraction team that removed Sires from his
cell on June 23, 2009; director of UMCH; Thomas Quinlivan, captain
correctional officer at MCI Shirley; and, Edward McGonigle, a
captain correctional officer at SBCC.

In addition, Sires lists in

the caption of the complaint Dr. Augustus Enaw and Terri Marshall
as defendants, but the body of the complaint does not refer to
these two defendants.
Sires brings five causes of action.

In each cause of action,

Sires refers to the "defendants" collectively.

He does not name

individual defendants in each cause of action.
The first three causes of action are based on the June 23,
2009 aggression by members of the move extraction team at SBCC.
(See First, Second, and Third Causes of Action, Docket No. 1, at 7.
These claims are essentially duplicative.

Sires alleges therein

that the defendants violated his rights under the Fourth, Fifth,

2

Sires does not allege that he actually ever occupied a
double cell.
7

Sixth, Eighth, and Fourteenth amendments.

He also claims that the

defendants violated Articles X, XI, and XII of the Massachusetts
Declaration of Rights, which Sires characterizes as provisions
guaranteeing

freedom

from

cruel

and

process of law and equal protection.

unusual

punishments,

due

He also alleges that the

defendants violated Chapters 124 through 127 of the Massachusetts
General Laws.
Sires's

fourth

and

fifth

causes

of

action

concern

the

defendants' alleged attempts to force Sires to double cell at MCI
Shirley.

In the fourth cause of action Sires claims:

The defendant(s) in their act(s), action(s),
conspiracies and untoward conduct towards the plaintiff
in
attempting
to
totally
disregarding
his
medical/psychiatric/psychological needs in . . . forcing
him to occupy a prison cell architecturally designed for
one (1) inmate, to share w/another inmate (double
celling) . . . did violated his Fourth, Sixth, Eighth and
Fourteenth Amendment right(s) of the Bill of Rights to
the U.S. Constitution and Arts. 10-12 of the Declaration
of Rights to the Constitution of the Commonwealth of
Massachusetts.
Compl., Docket No. 1-1, at 13.
In

the

Fifth

Cause

of

Action,

Sires

alleges

that

the

defendants violated his federal and state rights by not complying
with 103 C.M.R. § 430 concerning inmate discipline.
II.

DISCUSSION
A.

Motion for Leave to Proceed In Forma Pauperis

Upon review of the motion for leave to proceed in forma
pauperis, the court concludes that Sires has demonstrated that he

8

is without income or assets to prepay the $350.00 filing fee.
Therefore, the motion is being allowed.

Pursuant to 28 U.S.C.

§ 1915(b)(1), the court assesses an initial partial filing fee of
$2.23.

The remainder of the fee, $347.77, shall be collected in

accordance with 28 U.S.C. § 1915(b)(2).
B.

Screening of the Complaint
1.

Court's Authority to Screen the Complaint

When a plaintiff seeks to file a complaint without prepayment
of the filing fee, summonses do not issue until the court reviews
the complaint and determines that it satisfies the substantive
requirements of 28 U.S.C. § 1915.

Similarly, under 28 U.S.C.

§ 1915A, prisoner complaints in civil actions that seek redress
from

a

governmental

entity

or

officers

or

employees

of

a

governmental entity are also subject to screening. Both § 1915 and
§ 1915A authorize federal courts to dismiss a complaint sua sponte
if the claims therein are frivolous, malicious, fail to state a
claim on which relief may be granted, or seek monetary relief
against a defendant who is immune from such relief.

See 28 U.S.C.

§ 1915(e)(2); 28 U.S.C. § 1915A(b). In conducting this review, the
court liberally construes the complaint because the plaintiff is
proceeding pro se.

See Haines v. Kerner, 404 U.S. 519, 520-21

(1972).

9

2.

Rule 8(a) of the Federal Rules of Civil Procedure

To state a claim for relief, a complaint must comply with the
pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure.

Under this rule, a complaint must include "a short and

plain statement of the claim showing that the pleader is entitled
to relief."

Fed. R. Civ. P. 8(a)(2).

At a minimum, the complaint

must "give the defendant fair notice of what the plaintiff's claim
is and the grounds upon which it rests."

Calvi v. Knox County, 470

F.3d 422, 430 (1st Cir. 2006) (quoting Educadores Puertorriqueños
en Acción v. Hernández, 367 F.3d 61, 66 (1st Cir.

2004)).

This

means that the statement of the claim must "at least set forth
minimal facts as to who did what to whom, when, where, and why."
Id.

(quoting

Educadores,

367

F.3d

at

68).

Although

the

requirements of Rule 8(a)(2) are minimal, "minimal requirements are
not tantamount to nonexistent requirements."

Id. (quoting Gooley

v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988)).
plaintiff's

obligation

to

provide

the

grounds

"requires more than labels and conclusions."
v. Twombly, 550 U.S. 544, 555 (2007).

of

his

The
claim

Bell Atlantic Corp.

A court is not "bound to

accept as true a legal conclusion couched as a factual allegation,"
and "[f]actual allegations must be enough to raise a right to
relief above the speculative level."

Id. (quoting in part Papasan

v. Allain, 478 U.S. 265, 286 (1986)); see also Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009) ("Threadbare recitals of a cause

10

action, supported by mere conclusory statements, do not suffice.").
To provide the notice required under Rule 8(a), a plaintiff
cannot "lump" defendants together when it cannot be reasonably
inferred that all of the defendants were involved in the alleged
misconduct, or it is otherwise not clear to which defendant or
defendants the plaintiff is referring.

See Bagheri v. Galligan,

160 Fed. Appx. 4, 5 (1st Cir. 2005) (upholding district court’s
dismissal of action where the original complaint did not "state
clearly which defendant or defendants committed each of the alleged
wrongful acts" and the plaintiff had failed to cure the pleading
deficiencies); Atuahene v. City of Hartford, 10 Fed. Appx. 33, 34
(2d Cir. 2001) ("By lumping all the defendants together in each
claim and providing no factual basis to distinguish their conduct,
[plaintiff]'s complaint failed to satisfy [the] minimum standard of
pleading under Fed. R. Civ. P. 8(a).").
C.

Direct Involvement Required Under 42 U.S.C. § 1983

Sires alleges that the defendants have violated his rights
under the Fourth, Sixth, Eighth and Fourteenth amendments of the
United States Constitution.3

Claims for violations of federal

3

The court cannot discern any manner in which, under the
alleged facts,
Articles X, XI, and XII of the Massachusetts
Declaration of Rights or Chapters 124 through 127 of the
Massachusetts General Laws afford Sires greater rights than those
bestowed by the United States Constitution under the alleged facts.
Accordingly, the court will limit its discussion to possible
violations of the United States Constitution.
11

rights by state actors must be brought under 42 U.S.C. § 1983
("§ 1983").

See Arpin v. Santa Clara Valley Transp. Agency, 261

F.3d 912, 925 (9th Cir. 2001) ("[A] litigant complaining of a
violation of a constitutional right does not have a direct cause of
action under the United States Constitution but [rather] must
utilize 42 U.S.C. § 1983.")

This statute provides that any

"person," acting under the color of state law, who "subjects, or
causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured."

42 U.S.C. § 1983.

"It is well-established that 'only those individuals who
participated in the conduct that deprived the plaintiff of his
rights can be held liable.'"

Velez-Rivera v. Agosto-Alicea, 437

F.3d 146, 156 (1st Cir. 2006) (quoting Cepero-Rivera v. Fagundo,
414 F.3d 124, 129 (1st Cir. 2005)). "In § 1983 cases, 'supervisors
are not automatically liable for the misconduct of those under
their command.

A plaintiff must show an affirmative link between

the subordinate officer and the supervisor, whether through direct
participation or through conduct that amounts to condonation or
tacit authorization.'" Id. (quoting Carmona v. Toledo, 215 F.3d
124, 132 (1st Cir. 2000)); see also Bonner v. Outlaw, 552 F.3d 673,
679 (8th Cir. 2009) ("[A] warden's general responsibility for
supervising

a

prison

is

insufficient

12

to

establish

personal

liability.").
Therefore, unless Sires has alleged direct participation by a
defendant in conduct that violates his federal rights, Sires has
failed to state a cause of action under § 1983 against that
defendant.

Sires has made conclusory allegations that each of the

defendants

had

knowledge

of,

and

were

complicit

in

all

the

constitutional violations set forth in the complaint, but Sires
does not make actual factual allegations that would support such
speculation.

The court cannot credit these vague and speculative

allegations of participation and liability.
1.

Claims Concerning SBCC

The three causes of action that Sires brings related to
injuries he suffered at SBCC concern the June 23, 2009 cell
extraction.
"defendants"

Although

Sires

collectively,

brings

with

the

these

claims

exception

of

against

the

allegations

concerning the move extraction team members (John and Jane Doe;
Ayala), Sires does not allege any direct participation in the
extraction by any other defendants.

He does not allege that other

defendants on staff at SBCC (Dickhaut, Gelb, Mendonso, Guirin or
Blood)

or

any

other

defendant

planned,

ordered,

physically

participated in, supervised, or otherwise were involved in the
extraction.
Accordingly, the first, second and third causes of action are
dismissed against all defendants except John and Jane Doe and

13

Ayala.

The clerk shall issue summons as to Ayala.

At this time,

the clerk shall not issue summonses as to John and Jane Doe because
these are fictitious names.

Although the use of fictitious names

to identify defendants is not favored, situations may arise where
the identity of an alleged defendant cannot be known prior to the
filing of a complaint.

See Martínez-Rivera v. Ramos, 498 F.3d 3,

8 (1st Cir. 2007). If, through discovery, Sires discovers the true
name of these defendants, he "should act promptly to amend the
complaint to substitute the correct parties and to dismiss any
baseless claims."

Id. at 8 n.5.

He may then also file a motion

for issuance of summonses for these defendants.
2.

Claims Concerning MCI Shirley
a.

In

his

fourth

Fourth Cause of Action: Double Celling
cause

of

action,

Sires

alleges

that

the

defendants' attempts to force Sires to accept a double cell
assignment violated his rights under the Fourth, Sixth, Eighth and
Fourteenth amendments.

As the Fourth, Sixth, and Fourteenth

amendments are inapplicable under these allegations, the court will
consider this claim as one for a violation of the Eighth Amendment.
The Eighth Amendment’s prohibition on "cruel and unusual
punishments,"

U.S.

Const.

amend.

VIII,

proscribes

only

those

conditions of confinement which deprive an inmate of "the minimal
civilized measure of life's necessities," Rhodes v. Chapman, 452
U.S. 337, 347 (1981).

Double cell assignments are not a per se

14

violation of the Eight Amendment.

See Cote v. Murphy, 152 Fed.

Appx. 6, 7 (1st Cir. 2005) (the mere authorization of double cell
assignments or the execution of such a policy does not offend the
constitution). Therefore, to the extent Sires attempts to hold any
defendant liable simply because he or she approved or instituted
a double cell policy, the claim fails to state a claim for relief.
Nonetheless, "in rare cases" a double cell policy "might
amount to an unlawful practice when combined with other adverse
conditions." Id. For the sole purpose of reviewing this complaint
under 28 U.S.C. §§ 1915(e)(2) and 1915A, the court will assume
that, given Sires's medical condition, requiring him to double cell
violated the Eighth Amendment.4

Therefore, any defendant who

was

directly involved in this violation remains a defendant in the
action.

Construing the complaint very generously, the court

concludes that summonses shall issue as to Parent, who revoked
Sires's single cell status, and Farley, who imposed disciplinary
sanctions on Sires.5

The fourth cause of action shall be dismissed

as to all other defendants.

4

Of course, the defendants are free to challenge this
assumption in a dispositive motion or at any other stage of the
litigation.
5

The court notes that Sires cannot obtain damages based on a
defendant's attempt to force him occupy a double cell unless he
makes a showing of physical injury. See 42 U.S.C. § 1997e(e) ("No
Federal civil action may be brought by a prisoner confined in a
jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior showing
of physical injury.").
15

b.

Fifth
Cause
Proceedings

of

Action: Disciplinary

In the fifth cause of action, Sires alleges that defendants
did not comply with DOC regulations concerning inmate discipline.
Although Sires does not specify in the cause of action, the
disciplinary

procedures

that

allegedly

ran

afoul

of

state

regulations, the court infers from the factual allegations that
Sires is challenging the disciplinary proceeding concerning the
August 23, 2010 disciplinary report. As noted above, Sires alleges
that another inmate made a "pill line".

Although Sires alleges

that Woodward, who authored the disciplinary report, thought that
the "pill line" was going to Sires, Sires complains that Woodward
later gave false testimony at the disciplinary hearing. Sires also
alleges that Farley wrongly found him guilty of the disciplinary
infraction, and that MacEachern wrongly denied the appeal.

Sires

also alleges that this "fraudulent" disciplinary process wrongly
became a factor in his classification hearings.
Sires brings this cause of action under the Fourth, Fifth,
Sixth, Eighth, and Fourteenth amendments.

However, only the

Fourteenth amendment's guarantee of due process appears to be
possibly

relevant.

The

court

will

conduct

its

analysis

accordingly.
The due process clause of the Fourteenth Amendment "protects
persons against deprivations of life, liberty, or property; and
those who seek to invoke its procedural protection must establish
16

that one of these interests is at stake." Wilkinson v. Austin, 545
U.S. 209, 221 (2005).

An inmate does not, however, have a liberty

interest in avoiding a particular condition of confinement unless
the condition "imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life."
Id. at 222-23 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
In Sandin, for example, the Court held that a prisoner did not
have a liberty interest in avoiding disciplinary segregation.

See

Sandin,

the

515

U.S.

at

485-86.

The

Court

explained

that

disciplinary segregation did not impose an atypical, significant
departure from the basic conditions of the inmate's sentence.
id.

See

Similarly, in Dominique v. Weld, 73 F.3d 1156, 1159-60 (1st

Cir. 1996), the First Circuit applied Sandin to hold that an inmate
who had been participating in a work release program did not have
a liberty interest in avoiding transfer to a higher security
facility.

Acknowledging that "there is a considerable difference

between the freedoms [the inmate] enjoyed when he was in work
release status and the conditions of incarceration at a medium
security facility," the First Circuit nonetheless concluded that
the transfer did not constitute an atypical hardship as compared to
the ordinary incidents of prison life.

Id. at 1160.

The court

reasoned that the transfer did not affect the duration of his
sentence or subject the prisoner to "conditions no different from
those ordinarily experienced by large numbers of other inmates

17

serving their sentences in customary fashion."

Id.

Applying Sandin to the present action, the court cannot infer
from

any

of

the

plaintiff’s

allegations

that

the

allegedly

fraudulent disciplinary procedure imposed "atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life."

Sandin, 545 U.S. at 484.

According to Sires's

allegations, the worst possible outcome of a guilty finding on the
August 23, 2010 disciplinary report was a transfer to MCI Concord.
Because Sires did not have a liberty interest in any particular
classification or in avoiding transfer to MCI Concord, he was not
entitled to any particular process, even if the process he did
receive violated state regulations.

See Sandin, 515 U.S. at 482-

84; see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)
(prisoners do not have a liberty interest in a particular grievance
procedure).6

Accordingly, the fifth cause of action is dismissed

as to all defendants.
C.

Motion for Appointment of Counsel

Although the court "may request an attorney to represent any
person unable to afford counsel," 28 U.S.C. §1915(e)(1), a civil
plaintiff

lacks

a

constitutional

6

right

to

free

counsel,

see

In addition, the issuance of a false disciplinary report
does not deprive an inmate of a protected liberty interest. See
Gay v. Shannon, 211 Fed. Appx. 113, 116 (3d Cir. 2006); Asad v.
Bush, 170 Fed. Appx. 668, 672 (11th Cir. 2006); Jackson v. Madery,
158 F.3d Appx. 656, 662 (6th Cir. 2005).
18

DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991).

The court

does not have the funds to pay attorneys to represent plaintiffs in
civil cases, and it is very difficult for the court to find
attorneys who will accept appointment as pro bono counsel.

To

qualify for this scarce resource, a party must be indigent and
exceptional circumstances must exist such that the denial of
counsel will result in fundamental unfairness impinging on the
party’s due process rights.

See DesRosiers, 949 F.2d at 23.

To

determine whether there are exceptional circumstances sufficient to
warrant the appointment of counsel, a court must examine the total
situation, focusing on the merits of the case, the complexity of
the legal issues, and the litigant's ability to represent himself.
See id. at 24.

Because the defendants have not been served with or

responded to the complaint, the court cannot yet determine whether
exceptional circumstances exist that would justify appointment of
counsel.

The

court

is

therefore

denying

the

motion

without

prejudice.
III. ORDER
Accordingly, it is hereby ORDERED that:
(1)

The motion for leave to proceed in forma pauperis (Docket

No. 15) is ALLOWED.

Pursuant to 28 U.S.C. § 1915(b)(1), the court

assesses an initial partial filing fee of $2.23.

The remainder of

the fee, $347.77, shall be collected in accordance with 28 U.S.C.
§ 1915(b)(2).

The clerk shall send a copy of this order to the

19

treasurer of the institution having custody of the plaintiff.
(2)

Summonses shall issue as to Ayala, Parent, and Fedele.

(3)

With the exception of claims against John and Jane Doe,

claims against all other defendants are DISMISSED WITHOUT PREJUDICE
for failure to state a claim upon which relief may be granted.
Further, the first, second and third causes of action are DISMISSED
as to Parent and Fedele, and the fourth and fifth causes of action
are DISMISSED as to Ayala and John and Jane Doe.

If Sires desires

to cure the pleading deficiencies as to the dismissed claims, he
may amend the complaint in accordance with Fed. R. Civ. P. 15.
(3)

The motion for service of process by the United States

Marshal (Docket No. 11) is ALLOWED to the extent that Sires asks
that service be completed by the United States Marshal. The United
States Marshal shall serve a copy of the summonses, complaint, and
this order upon the defendants for whom summonses have issued as
directed by plaintiff with all costs of service to be advanced by
the United States.

The plaintiff is responsible for providing all

necessary forms and documents for service to the United States
Marshal.
(4)

The plaintiff shall complete service within 120 days of

the date of this order.
(5)

The motion for appointment of counsel (Docket No. 4) is

DENIED WITHOUT PREJUDICE.
(6)

The motion for court monitoring of mail (Docket No. 16)

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is DENIED WITHOUT PREJUDICE.

The motion appears to be moot as

Sires is now at a different institution than he was when he filed
the motion.

/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

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