Schultz v. Cousins et al

Filing 25

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDERIn view of the foregoing, it is hereby ORDERED that: 1. The plaintiff's Motion for the Appointment of Counsel (Docket No. 9) is DENIED without prejudice. 2. The defendants' Motion to Dismiss the Essex County Sheriff's Office (Docket No. 15) is MOOT. 3. The plaintiff's Motion for Enlargement of Time (Docket No. 16) is MOOT. 4. The plaintiff's Motion to Amend (Docket No. 17) is ALLOWED. 5. The plaintiff's Petition for Writ of Habeas Corpus Ad Testificandum (Docket No. 22) is DENIED without prejudice. 6. The parties shall comply with the attached Scheduling Order. (Attachments: # 1 Scheduling Order)(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JASON J. SCHULTZ,
Plaintiff,
v.
MICHAEL MARKS, FRANK J.
COUSINS, SEAN WALDRON, ESSEX
COUNTY SHERIFF'S OFFICE,
Defendants.

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C.A. No. 12-10340-MLW

MEMORANDUM AND ORDER
WOLF, D.J.

March 13, 2013

Pro se plaintiff Jason J. Schultz, who is incarcerated, filed
a Complaint on February 21, 2012 alleging that on April 6, 2010,
the defendants used excessive force to remove him from his cell in
violation of the Eighth Amendment. See Complaint ¶¶5-9 (Docket No.
1).

The original Complaint did not state a cause of action, but

the plaintiff's other filings make clear that he is proceeding
under 42 U.S.C. §1983, with supplemental claims under state tort
law.

See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (complaint

liberally construed where plaintiff proceeding pro se); Pl.'s Memo.
in Support of Mot. for Appointment of Counsel (Docket No. 10).

On

March 2, 2012, the court allowed the plaintiff's motion to proceed
in forma pauperis, authorized the issuance of summonses, and
ordered the defendants to respond to the Complaint.
2012 Order (Docket No. 4).

See March 2,

On June 27, 2012, the defendants filed

an Answer and moved to dismiss the Essex County Sheriff's Office as
a defendant.

The plaintiff has since filed several motions,

including a Motion for Appointment of Counsel and a Motion to Amend
the Complaint.
For the reasons explained below, the court is denying without
prejudice the plaintiff's Motion for the Appointment of Counsel
(Docket No. 9) and Petition for a Writ of Habeas Corpus Ad
Testificandum

(Docket

No.

22).

The

court

plaintiff's Motion to Amend (Docket No. 21).

is

allowing

the

In view of these

decisions, the plaintiff's Motion for Enlargement of Time (Docket
No.

16)

and

the

defendants'

Motion

to

Dismiss

Essex

County

Sheriff's Office (Docket No. 9), are moot.
I. BACKGROUND
The plaintiff alleges that on April 6, 2010, after he refused
to be handcuffed in his cell at the Essex County Correctional
Facility, the defendants, despite the plaintiff's warning that he
is asthmatic, applied a "chemical agent" causing him to suffer an
asthma attack.

Compl. ¶¶5-6.

During the asthma attack, the

plaintiff alleges that the defendants punched, kneed, and choked
him, causing multiple injuries.

Id. ¶¶7-8.

money damages in the amount of $2,000,000.

The plaintiff seeks
Id. ¶9.

II. DISCUSSION
A. Motion for the Appointment of Counsel
On May 17, 2012, the plaintiff moved for appointment of
counsel at public expense.
Counsel (Docket No. 9).

See Motion for the Appointment of

A plaintiff in a civil case lacks a

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constitutional right to free counsel.

DesRosiers v. Moran, 949

F.2d 15, 23 (1st Cir. 1991). Under certain circumstances, however,
the court "may request an attorney to represent any person unable
to afford counsel."

28 U.S.C. §1915(e)(1).

To qualify for

appointed counsel in a civil case, a party must be indigent and
"exceptional circumstances" must exist such that denial of counsel
is "likely to result in fundamental unfairness impinging on [the
party's] due process rights."

See DesRosiers, 949 F.2d at 23.

To

determine whether exceptional circumstances exist justifying the
appointment of counsel, the court must examine the total situation,
with a focus on the merits of the case, the complexity of the legal
issues, and the litigant's ability to represent himself.

See id.

at 24.
Here, the court allowed the plaintiff's motion to proceed in
forma pauperis, so the plaintiff is indigent. At this stage in the
proceedings, however, the other DesRosiers factors do not favor
appointment

of

counsel.

Plaintiff

cites

his

lack

of

legal

training, but that alone is not sufficient to justify appointment
of counsel.

See Cookish v. Cunningham, 787 F.2d 1, 2-3 (1st Cir.

1986) (per curiam).

Although the defendants raise a number of

affirmative defenses in their Answer, some of which may eventually
present complex legal issues, the defendant has so far shown a
sufficient ability to make coherent legal arguments, with citations
to relevant authorities, and to draft competent pleadings.

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See

DesRosiers, 949 F.2d at 23.

Therefore, the motion to appoint

counsel is being denied, without prejudice to renewal of the motion
if exceptional circumstances develop later in this case.
B. Motion to Dismiss Essex County Sheriff's Office
On June 27, 2012, the defendants filed a Motion to Dismiss the
Essex County Sheriff's Office (Docket No. 15).

The motion argues

that the Essex County Sheriff's Office is not an entity that can be
sued.

The defendants' position appears to be meritorious as

certain Massachusetts counties, including Essex County, are no
longer

separate

legal

entities

from

the

Commonwealth

of

Massachusetts, and the Essex County Sheriff is now an employee of
the Commonwealth.

See Mass. Gen. Laws c. 34B, §§1, 12; cf. Brown

v. Massachusetts, No. 11-11019-JGD, 2012 WL 588800, at *3-4 (D.
Mass.

Feb.

21,

2012)

(Dein,

M.J.)

(Essex

County

Sheriff's

Department is agency of Commonwealth of Massachusetts entitled to
sovereign immunity).

In any event, the Motion to Dismiss is moot

because, for the reasons described below, the court is allowing the
plaintiff to file an amended complaint which, in part, removes the
Essex County Sheriff's Office as a party.
C. Motion to Amend
On July 18, 2012, the plaintiff filed a Motion to Amend,
seeking to substitute the Essex County Sheriff's Office for the
Commonwealth of Massachusetts as a party.

See Mot. to Amend

(Docket No. 17). The motion was filed 21 days after the defendants

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filed their Answer and Motion to Dismiss Essex County Sheriff's
Office.

The defendants opposed the motion on grounds that the

Commonwealth of Massachusetts cannot be sued in federal court under
the doctrine of sovereign immunity.
Amend (Docket No. 19).

See Defs.' Opp. to Mot. to

The plaintiff subsequently withdrew the

motion, and filed a second Motion to Amend (Docket No. 21) on
August 1, 2012.

See Withdrawal of Mot. to Amend (Docket No. 20);

Motion to Amend.

This proposed amended complaint would: "hold all

defendants accountable in their individual capacity"; add Captain
Steven Nowicki, a supervisor at the Essex County Correctional
Facility, as a party; specify supplemental claims for the "torts of
assault and battery and negligence"; and clarify that $1,000,000 is
sought against defendant Waldron and another $1,000,000 is sought
against the remaining defendants collectively.

See Second Motion

to Amend (Docket No. 21). The second Motion to Amend is unopposed.
Federal Rule of Civil Procedure 15(a)(1)(B) allows a party to
amend its pleadings once as a matter of course within 21 days
after, among other things, service of a Rule 12(b) motion.

If the

motion falls outside of this period, the party may amend its
pleadings only with the opposing party's consent or with leave of
court, and "[t]he court should freely give leave when justice so
requires.

See Fed. R. Civ. P. 15(a)(2).

Here, the plaintiff's

first Motion to Amend was filed 21 days after the defendants'
Answer and Motion to Dismiss Essex County Sheriff's Office, but

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proposed to add the wrong party.

The instant motion was filed

outside the 21 days, but proposes to add evidently proper parties.
The defendants are not prejudiced by the addition of Steven
Nowicki, who was mentioned extensively in the original Complaint.
Moreover, the defendants have not opposed the instant motion.

In

these circumstances, the court finds that it is in the interests of
justice

to

allow

the

plaintiff's

Second

Motion

to

Amend.

Therefore, the motion is being allowed.
D. Motion for Enlargment of Time
On June 27, 2012, the plaintiff filed a Motion for Enlargement
of Time (Docket No. 16).

The plaintiff states in the motion that

he is concerned that certain documents he mailed from the Essex
County Correctional Facility on May 15, 2012 were not actually
sent. The docket sheet in this case reflects that the documents to
which the plaintiff refers were delivered.
Summons (Docket Nos. 11, 12, 13).

See, e.g., Return of

Accordingly, this motion is

moot.
E. Petition for Writ of Habeas Corpus
On October 24, 2012, the plaintiff filed a Petition for Writ
of Habeas Corpus Ad Testificandum (Docket No. 22).

As no hearing

has been scheduled in this matter, this motion is premature and is
being denied without prejudice. The plaintiff may renew his motion
if and when the court schedules a hearing in this matter.

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III. ORDER
In view of the foregoing, it is hereby ORDERED that:
1. The plaintiff's Motion for the Appointment of Counsel
(Docket No. 9) is DENIED without prejudice.
2.

The

defendants'

Motion

to

Dismiss

the

Essex

County

Sheriff's Office (Docket No. 15) is MOOT.
3. The plaintiff's Motion for Enlargement of Time (Docket No.
16) is MOOT.
4. The plaintiff's Motion to Amend (Docket No. 17) is ALLOWED.
5. The plaintiff's Petition for Writ of Habeas Corpus Ad
Testificandum (Docket No. 22) is DENIED without prejudice.
6. The parties shall comply with the attached Scheduling
Order.
/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

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