Hudson et al v. Spencer et al

Filing 88

Judge Nathaniel M. Gorton: ORDER entered denying 69 "Motion to Have Defendants Counsel Accept Service on Behalf of Defendant or Alternatively to be Issued Appropriate Summons to Make Service" except that the Clerk shall issue summonses fo r service of the first amended complaint on the two new defendants: Jaileen Hopkins and Dale Bissonnette; granting 67 "Motion for Appointment of Counsel." Plaintiffs must continue to proceed pro se until such time as pro bono counsel ca n be secured on their behalf, if at all. Although the Court is not entering an order for defendants counsel to accept service on behalf of any, or all, of the defendants, counsel is free to file a notice that they will accept such service.This matter is referred to the Court's Pro Bono Coordinators to attempt to secure counsel willing to represent plaintiffs without compensation The Pro Bono Coordinator shall, by April 30, 2014, report to the Court the result of such effort. The Clerk sha ll send the summonses, first amended complaint, and this Order to plaintiff Mac Hudson, who must thereafter serve defendants Jaileen Hopkins and Dale Bissonnette in accordance with Federal Rule of Civil Procedure 4(m). Mac Hudson may elect to have service made by the United States Marshals Service. Notwithstanding Fed. R. Civ. P. 4(m) and Local Rule 4.1, the plaintiffs shall have 120 days from the date of this Order to complete service.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MAC S. HUDSON, et al.,
Plaintiffs,
v.
LUIS S. SPENCER, et al.,
Defendants.

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CIVIL ACTION No.
11-12173-NMG

ORDER ON PLAINTIFF’S MOTIONS NOS. 67, 69
GORTON, J.
This multi-plaintiff action was filed by several
Massachusetts inmates in 2011 concerning their request for
certain religious accommodations while incarcerated at MCI Concord.

See Docket No. 1.

recently allowed.

Plaintiffs motion to amend was

See Docket No. 80.

The first amended

complaint adds one new plaintiff [Umar Salahuddin] and adds two
new defendants [Jaileen Hopkins and Dale Bissonnette].

See

Docket No. 81.
Pending before the Court are plaintiffs’ motion for
appointment of counsel and motion concerning service of the
amended complaint.

See Docket Nos. 67, 69.

A. The Motion for Appointment of Counsel
Under 28 U.S.C. § 1915(e)(1), the Court may request an
attorney to represent any person unable to afford counsel.
appointment, however, is a privilege, not a right.

Such

See

DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991) ("there is
no absolute constitutional right to a free lawyer in a civil

case").

The United States Court of Appeals for the First Circuit

provides the following set of factors to consider when
determining whether to appoint counsel to an indigent under §
1915: “[1] the indigent's ability to conduct whatever factual
investigation is necessary to support his or her claim; [2] the
complexity of the factual and legal issues involved; and [3] the
capability of the indigent litigant to present the case.”
Cookish v. Cunningham, 787 F.2d 1, 3 (1st Cir. 1986) (per
curiam); see also Bemis v. Kelley, 857 F.2d 14, 16 (1st Cir.
1988).

Ultimately, to be eligible for this assistance under 28

U.S.C. § 1915, plaintiffs “must demonstrate that [they are]
indigent and that exceptional circumstances [are] present such
that a denial of counsel [is] likely to result in fundamental
unfairness impinging on his due process rights.”

DesRosiers v.

Moran, 949 F.2d 15, 23 (1st Cir. 1991).
The Court previously allowed plaintiffs to proceed in forma
pauperis, a sign of their financial limitations, and also
determined that they had exhausted their administrative remedies.
In light of the total circumstances presented, the court will
allow plaintiffs’ motion for counsel.
Plaintiffs are advised, however, that the pro bono panel is
comprised of volunteer attorneys who are not compensated for
their services.

It is difficult to predict when, and if, an

appointment will be made.

Therefore plaintiffs must continue to

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proceed pro se until such time as pro bono counsel can be secured
on their behalf, if at all.
B. Service of Process
Plaintiffs filed a motion seeking to have defendants’
counsel accept service, or in the alternative, issue summons for
service.
Pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3),
the Court is required to “order service by the U.S. Marshal if
the plaintiff is authorized to proceed IFP.” See Laurence v.
Wall, 551 F.3d 92, 93 (1st Cir. 2008).

Here, the Court will

direct the clerk to issue summonses for service of the first
amended complaint on defendants Jaileen Hopkins and Dale
Bissonnette by the United States Marshals Service.

Because the

remaining defendants have already appeared in this action, the
plaintiffs may serve them by mailing copies of the first amended
complaint.
Although the Court is not entering an order for defendants’
counsel to accept service on behalf of any, or all, of the
defendants, counsel is free to file a notice that they will
accept such service.
Accordingly, it is hereby ORDERED that:
(1)

Plaintiffs’ Motion (#67) for Appointment of Counsel is
allowed. Plaintiffs must continue to proceed pro se
until such time as pro bono counsel can be secured on
their behalf, if at all.

(2)

This matter is referred to the Court's Pro Bono
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Coordinators to attempt to secure counsel willing to
represent plaintiffs without compensation The Pro Bono
Coordinator shall, by April 30, 2014, report to the
Court the result of such effort.
(3)

Plaintiffs’ Motion (#69) to Have Defendants Counsel
Accept Service on Behalf of Defendant or Alternatively
to be Issued Appropriate Summons to Make Service is
denied except that the Clerk shall issue summonses for
service of the first amended complaint on the two new
defendants: Jaileen Hopkins and Dale Bissonnette.

(4)

The Clerk shall send the summonses, first amended
complaint, and this Order to plaintiff Mac Hudson, who
must thereafter serve defendants Jaileen Hopkins and
Dale Bissonnette in accordance with Federal Rule of
Civil Procedure 4(m). Mac Hudson may elect to have
service made by the United States Marshals Service. If
directed by the plaintiff to do so, the United States
Marshals shall serve the summons, first amended
complaint, and this Order upon defendants Jaileen
Hopkins and Dale Bissonnette, in the manner directed by
the plaintiff Mac Hudson, with all costs of service to
be advanced by the United States. Notwithstanding Fed.
R. Civ. P. 4(m) and Local Rule 4.1, the plaintiffs
shall have 120 days from the date of this Order to
complete service.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated March 19, 2014

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