Almeida v. Fall River Police Station et al

Filing 9

Judge Patti B. Saris: MEMORANDUM AND ORDER entered: Plaintiff's second Motion for Appointment of Counsel (Docket No. 8) is DENIED; and this action shall be dismissed within 28 days of the date of this Memorandum and Order unless plaintiff demonstrates good cause in writing, including legal authority, why his claims should not be dismissed for the reasons stated herein. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOSE A. ALMEIDA,
Plaintiff,
v.
FALL RIVER POLICE STATION,
ET AL.,
Defendants.

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CIVIL ACTION NO. 12-11476-PBS
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MEMORANDUM AND ORDER
September 18, 2012
SARIS, U.S. D.J.
I.

Introduction

On July 30, 2012 , plaintiff Jose A. Almeida (“Almeida”), an
inmate at the Bristol County House of Corrections in North
Dartmouth, Massachusetts, filed a self-prepared Complaint
alleging that the defendants used perjured testimony against him,
and that he was maliciously prosecuted for armed robbery.
On August 13, 2012, this Court issued a Memorandum and Order
(Docket No. 6) granting Almeida’s Motion for Leave to Proceed in
forma pauperis, denying his petition for writ of habeas corpus ad
testificandum, and denying his Motion for Appointment of Counsel.
Additionally, this Court directed Almeida to demonstrate good
cause why this action should not be dismissed for the reasons set
forth in the Memorandum and Order.

The legal impediments

included: the failure of Almeida to plead his claims in
accordance with Rule 8 of the Federal Rules of Civil Procedure,
the lack of a cognizable claim against the Fall River Police

Station (a non-suable entity), the immunity of the police officer
and individual defendants from suits for damages based on alleged
perjured testimony before the grand jury, the lack of state
action of a private defendant, the lack of respondeat superior
liability in civil rights actions, the sovereign immunity of the
District Attorney’s Office, and the absolute prosecutorial
immunity of the Assistant District Attorney.
On September 8, 2012, Almeida filed a second Motion for
Appointment of Counsel (Docket No. 8).

In that motion, Almeida

claims, inter alia, that he is unskilled in the law and does not
know what he is doing, although he asserts he knows he has been
wronged by the defendants.

He further asserts that all of his

factual evidence is in the state criminal case.
II. Discussion
As this Court noted in the prior Memorandum and Order, in
order to qualify for appointment of counsel, a party must be
indigent and exceptional circumstances must exist such that
denial of counsel will result in fundamental unfairness impinging
on the party’s due process rights.
15, 23 (1st Cir. 1991).

DesRosiers v. Moran, 949 F.2d

The matter of appointment is

discretionary, and the Court’s evaluation of the propriety of
appointment should take into account the total situation,
including the merits of the case, the complexity of the legal
issues, and the litigant’s ability to represent him or herself.

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Id. at 24.
As I also indicated in the prior Memorandum and Order, the
merits of Almeida’s legal claims are dubious.

Notwithstanding

that he lacks sufficient funds to retain his own counsel, and
notwithstanding that he is a prisoner and unskilled in the law,
(a situation not unique to prisoner plaintiffs), this Court finds
that nothing has changed since the initial denial of Almeida’s
Motion for Appointment of Counsel.

Indeed, upon review of the

record, this Court continues to doubt that Almeida’s claims have
legal merit.

In light of this, it would be a waste of the scarce

pro bono resources of the Court to appoint pro bono counsel for
him.
Accordingly, Almeida’s second Motion for Appointment of
Counsel (Docket No. 8) is DENIED.

Should Almeida wish to proceed

with this action, he must prosecute this action pro se.
Additionally, he must demonstrate good cause why this action
should not be dismissed within 28 days of the date of this
Memorandum and Order.

In demonstrating good cause, Almeida

should not reiterate the claims in his original Complaint, but
should address specifically the legal impediments to his claims
as outlined in the Memorandum and Order (Docket No. 6), and
include legal authority in support.
Failure to comply with this directive will result in a
dismissal of this action.

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III.

Conclusion

Based on the foregoing, it is hereby ORDERED that:
1.

Plaintiff’s second Motion for Appointment of Counsel (Docket
No. 8) is DENIED; and

2.

This action shall be dismissed within 28 days of the date of
this Memorandum and Order unless plaintiff demonstrates good
cause in writing, including legal authority, why his claims
should not be dismissed for the reasons stated herein.

SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
UNITED STATES DISTRICT JUDGE

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