Edwards v. Bertuccis Italian Restaurant

Filing 12

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered: Plaintiff's letter/request (Docket No. 8) seeking relief in the form of: (a) a Court order tothe Milford Federal Savings Bank; and (b) appointment of pro bono counsel, is DENIED. Plaintif f's motion for summary judgment against the defendant (Docket No. 9) is DENIED. Plaintiff's motion for recusal (Docket No. 10) seeking relief in the form of: (a) recusal; (b) appointment of pro bono counsel; (c) payment of $150.00 tow ard the filing fee; (d) an order to the Milford Federal Savings Bank with respect to trust funds; (e) a court-ordered settlement; and (f) the award of monetary damages is DENIED in its entirety. Plaintiff's letter/request (Docket No. 11) seeking an order directing the transfer of fundsfrom one bank to another is DENIED; however, his request for an extension of time to comply with the directives contained in the memorandum and order is ALLOWED. Plaintiff shall file an amended complaint comp orting with Rule 8 by June 7, 2013. Plaintiff is PROHIBITED from filing any further letters or motions until after compliance with the memorandum and order to file an amended complaint comporting with Rule 8, and after the defendant has filed a resp onsive pleading if this action is permitted to proceed further. Plaintiff is PROHIBITED from filing "letters" seeking relief from the Court. Should heseek relief, he must file his request in the form of a "motion" stating precisely what relief is sought and the basis for such relief. Plaintiff is WARNED that failure to comply with the directives contained herein mayresult in the imposition of sanctions, including a dismissal of this action. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
ROBERT S. EDWARDS,
Plaintiff,
v.
BERTUCCI'S ITALIAN RESTAURANT,
Defendant.

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Civil Action No.
13-10604-FDS

MEMORANDUM AND ORDER
SAYLOR, J.
I.

Introduction
On March 12, 2013, plaintiff filed an civil rights case asserting, among other things, age

and disability discrimination in connection with his application for employment. With the
complaint, he sought summary judgment and requested this Court create new tax law to increase
tax credit for businesses in order to help the disabled obtain employment.
On April 2, 2013, this Court issued a memorandum and order denying plaintiff’s motion
for summary judgment as well as his request for a change in tax law. Further, this Court
addressed the legal impediments to plaintiff’s claims and directed him to file an amended
complaint by May 7, 2013, that comported with Rule 8 of the Federal Rules of Civil Procedure.
Thereafter, plaintiff filed a number of motions and letters seeking various types of relief.

II.

Discussion
A.

The Letter/Request (Docket No. 8)

In his letter/request, plaintiff seeks the appointment of counsel as well as an order
permitting him to access all of his money deposited in the Milford Federal Savings Bank. He
contends that the bank has no right to hold his money because he has a new bank (the Needham
Bank).
First, with respect to the request for appointment of counsel, under 28 U.S.C. § 1915, a
“court may request an attorney to represent any person unable to afford counsel.” 28 U.S.C.
§ 1915(e)(1). 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 litigant 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 Bemis v. Kelley, 857 F.2d 14, 16 (1st Cir. 1988). Ultimately, to
be eligible for this assistance under 28 U.S.C. § 1915, plaintiff “must demonstrate that he [is]
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). This Court considers the total situation, including the merits of
the case, the complexity of the legal issues, and the litigant’s ability to represent himself. Id.1

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The standard is less stringent in employment discrimination cases. See, e.g., Gadson v. Concord Hosp., 966
F.2d 32, 35 (1st Cir. 1992) (stating: “[a] district court considers three factors in determining whether to appoint counsel
to a pro se plaintiff under Title VII: (1) the merits of plaintiff’s case; (2) the efforts by plaintiff to obtain legal
representation; and (3) the plaintiff’s financial ability.”). “Any one of the three factors may be determinative.” Id. at

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Although plaintiff suffers from a brain injury, is unskilled in the law, and may have a
difficult time prosecuting this case as a pro se, for the reasons set forth in the memorandum and
order, this Court cannot find that exceptional circumstances exist that warrant the expenditure of
scarce pro bono resources. Even under a liberal reading of the pleadings, the merits of plaintiff’s
claims are dubious, and thus, appointment of counsel is not justified.
Next, with respect to his request for an order permitting him to access money from the
Milford Federal Savings Bank, this requested relief is not related to the employment
discrimination and defamation claims presented in this case; rather, his request seeks relief from
a non-party to this action, and provides no coherent factual or legal basis for such relief. More
importantly, however, plaintiff’s request for an order appears to involve extraneous probate and
trust fund matters that are beyond the jurisdiction of this Court.2 In short, there is no basis to
grant the relief sought in this action with respect to any trust fund disputes.3 Accordingly, any
requests for relief contained in plaintiff’s letter (Docket No. 8) will be denied.
B.

The Motion for Summary Judgment (Docket No. 9)

In his motion for summary judgment, plaintiff again requests an award of money
damages against the Defendant for alleged discrimination and defamation, based on the

36 (citing Darden v. Illinois Bell Telephone Co., 797 F.2d 497, 501 (7th Cir. 1986)). Even under a less stringent
standard, this Court does not consider appointment of pro bono counsel at this time to be prudent.
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Apparently, his probate lawyer was appointed to oversee the trust fund and given power of attorney. Plaintiff
contests the authority of the power of attorney, and seeks an audit of his trust fund money, and the release of all the
money so that he can give the money to his great nieces and great nephews as a gift.
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To the extent that plaintiff has an ongoing probate court matter, this Court may not interfere with that
proceeding by rendering judgments negating rulings in the probate court. Thus, this Court would abstain from
jurisdiction over plaintiff’s dispute concerning monies held in trust for him.

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allegations contained in his complaint.
For the reasons set forth in the memorandum and order, the motion is premature and
unfounded. At this juncture, the complaint clearly raises questions of fact and law and thus
plaintiff has not shown that he is entitled to summary judgment on an ex parte basis.
Accordingly, the motion for summary judgment will be denied.
C.

The Motion for Recusal (Docket No. 10)

Plaintiff’s motion for recusal is not coherent or organized and contains requests for
various types of relief. From what can be gleaned, he seeks the recusal of this Court because he
is not satisfied with how his case is proceeding (presumably, he takes issue with the
memorandum and order denying his requests for relief an directing plaintiff to file an amended
complaint). He again requests appointment of counsel because he is a person with a disability.
He claims he can pay for a $150 filing fee and he seeks direction from the Court as to how to pay
this fee.
Next, plaintiff again seeks a Court order directing the Milford Federal Savings Bank to
release funds held in trust for him. He asks for an order to the United States Marshal Service to
serve the order on the Milford Federal Savings Bank.
Finally, plaintiff seeks a Court-ordered settlement against the Defendant for $300,000 in
compensatory damages and $30,000,000 in punitive damages, although he indicates he will
agree to damages not less than $25,000,000.
1.

The Request for Recusal

This Court finds no basis for recusal simply because the plaintiff is dissatisfied with the

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way his case is proceeding, and his attempt to judge-shop in this manner is not permitted.
2.

The Request for Appointment of Counsel

For the reasons set forth above, appointment of pro bono counsel is not appropriate.
3.

The Request to Pay $150 Filing Fee

Plaintiff previously has been permitted to proceed in forma pauperis, and thus his offer to
pay $150 toward the $350 filing fee is moot.
4.

The Request for a Court Order to the Milford Federal Savings Bank

Again, for the reasons set forth above, plaintiff’s requested relief is not related to the
employment discrimination and defamation claims presented in this case, and there is no basis to
grant the relief sought in this action with respect to any trust fund disputes.
5.

The Request for Court-Ordered Settlement

This Court may not grant the relief requested by the plaintiff, particularly where this case
has not been permitted to proceed further pending the filing of an amended complaint in
accordance with Rule 8. This Court also lacks authority to force a party into settlement.
Nevertheless, if this action is permitted to proceed, the Court would consider whether a referral
to the Court’s Alternative Dispute Resolution Program would be beneficial to the parties.
Without a response from the defendant, however, the consideration of referral for settlement of
this action is premature.
6.

The Request for Monetary Damages Against Defendant

Plaintiff provides no basis for the ex parte award of damages against an unserved
defendant who has not been afforded the opportunity to respond to the allegations asserted

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against it. Accordingly, plaintiff’s request is premature and unfounded.
Accordingly, for the reasons set forth above, the motion for recusal will be denied in its
entirety.
D.

The Letter/Request (Docket No.11)

In his letter/request, plaintiff seeks a Court order for the Milford Federal Savings Bank to
transfer his money to a money market fund in the Needham Bank. He requests that the United
States Marshal be directed to serve the order. He also states that he seeks to retain his attorney
of choice, although this statement is inconsistent with his request for appointment of counsel.
Finally, he seeks additional time beyond the 35-day deadline for complying with the Court’s
directives to file an amended complaint.
Again, for the reasons set forth above, plaintiff’s request for an order directing the
transfer of funds from one bank to another is beyond the scope of this employment
discrimination case, and there is no basis to grant the requested relief. Nevertheless, to the
extent that plaintiff seeks additional time to comply with the Court’s directives to file an
amended complaint, this Court will allow the request and will afford plaintiff an additional 30
days to file an amended complaint in compliance with the prior memorandum and order, and to
locate counsel should plaintiff seek to retain counsel on his own.
Accordingly, plaintiff will be directed to file an amended complaint comporting with
Rule 8 by June 7, 2013. Failure to comply with this directive will result in a dismissal of this
action. Plaintiff is advised that this Court will grant him one further opportunity to file an
amended complaint in accordance with Rule 8, and if he fails to do so, this action will be

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dismissed. He will not be given further opportunities to set forth his claims.
E.

Order Prohibiting Further Letters and Motions Seeking Relief

In order to preserve judicial resources, this Court will not entertain any further requests
for relief by the plaintiff, and plaintiff will be prohibited from filing any further requests for
relief until after he files an amended complaint as directed, and after the defendant has filed a
responsive pleading if this case is permitted to proceed further.
Moreover, plaintiff may not seek Court action in the form of “letters.” Such filings are
difficult to decipher precisely the relief requested. Documents submitted in the form of “letters”
also make it difficult for the efficient docketing and case management by Court staff.
Accordingly, should plaintiff seek any relief from this Court, he must file a request for relief in
the form of a “motion” stating precisely what relief is sought, and the basis for such relief as it
relates to this action. Any “motion” shall include the case caption and docket number (as noted
above), along with a title of the motion indicating what type of relief is sought.
Plaintiff is warned that failure to comply with these directives could result in the
imposition of sanctions, including the dismissal of this action.
III.

Conclusion
For the foregoing reasons, it is hereby ordered that:

1.

Plaintiff’s letter/request (Docket No. 8) seeking relief in the form of: (a) a Court order to
the Milford Federal Savings Bank; and (b) appointment of pro bono counsel, is DENIED.

2.

Plaintiff’s motion for summary judgment against the defendant (Docket No. 9) is
DENIED.

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3.

Plaintiff’s motion for recusal (Docket No. 10) seeking relief in the form of: (a) recusal;
(b) appointment of pro bono counsel; (c) payment of $150.00 toward the filing fee; (d) an
order to the Milford Federal Savings Bank with respect to trust funds; (e) a court-ordered
settlement; and (f) the award of monetary damages is DENIED in its entirety.

4.

Plaintiff’s letter/request (Docket No. 11) seeking an order directing the transfer of funds
from one bank to another is DENIED; however, his request for an extension of time to
comply with the directives contained in the memorandum and order is ALLOWED.

5.

Plaintiff shall file an amended complaint comporting with Rule 8 by June 7, 2013.

6.

Plaintiff is PROHIBITED from filing any further letters or motions until after
compliance with the memorandum and order to file an amended complaint comporting
with Rule 8, and after the defendant has filed a responsive pleading if this action is
permitted to proceed further.

7.

Plaintiff is PROHIBITED from filing “letters” seeking relief from the Court. Should he
seek relief, he must file his request in the form of a “motion” stating precisely what relief
is sought and the basis for such relief.

8.

Plaintiff is WARNED that failure to comply with the directives contained herein may
result in the imposition of sanctions, including a dismissal of this action.

So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: April 8, 2013

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