Lopes v. Riendeau et al

Filing 121

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Plaintiff's Renewed Motion for Appointment of Counsel (Docket Entry # 118 ). In accordance with the foregoing discussion, the motion for appointment of counsel (Docket Entry # 118 ) is DENIED without prejudice. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DANA LOPES,
Plaintiff,
v.

CIVIL ACTION NO.
14-10679-NMG

GERALDINE RIENDEAU, RN, BARBARA BERG,
LPN, UMASS CORRECTIONAL HEALTH, Program
Services, DYANA NICKL, Senior Director
of Program UMass Corr. Health, LAWRENCE
WEINER, Assistant Deputy Commissioner of
Clinical Services, SHAWNA NASUTI, NP,
PAUL CARATAZZOLA, LICSW, Administrator of
Health Services, PAT DAVENPORT-MELLO, HSA of
Nursing and MASSACHUSETTS PARTNERSHIP OF
CORRECTIONAL HEALTHCARE,
Defendants.
MEMORANDUM AND ORDER RE:
PLAINTIFF’S RENEWED MOTION FOR APPOINTMENT
OF COUNSEL (DOCKET ENTRY # 118)
March 3, 2016
BOWLER, U.S.M.J.
Pending before this court is the above motion for
appointment of counsel (Docket Entry # 118) filed by plaintiff
Dana Lopes (“plaintiff”), an inmate at Old Colony Correction
Center in Bridgewater, Massachusetts.

(Docket Entry # 39).

The

complaint alleges retaliation and a denial of medical care under
42 U.S.C. § 1983 (“section 1983”) and state law.

On March 31,

2014, the court allowed plaintiff to proceed in forma pauperis
and denied a motion to appoint counsel without prejudice.

On

March 11, 2015, this court denied a second motion for appointment
of counsel without prejudice.
DISCUSSION

As explained in the March 11, 2015 Memorandum and Order,
“Indigent civil litigants possess neither a constitutional nor a
statutory right to appointed counsel.”

Montgomery v. Pinchak,

294 F.3d 492, 498 (3rd Cir. 2002); accord DesRosiers v. Moran,
949 F.2d 15, 23 (1st Cir. 1991) (“[t]here is no absolute
constitutional right to a free lawyer in a civil case”).

Section

1915(e)(1) of Title 28 of the United States Code, however, gives
a court the discretion to request appointed counsel for “any
person unable to afford counsel.”

28 U.S.C. § 1915(e)(1); see

Weir v. Potter, 214 F.Supp.2d 53, 54 (D.Mass. 2002).
In order to obtain appointed counsel, there must be a
showing of both indigency and exceptional circumstances.
DesRosiers v. Moran, 949 F.2d at 23; accord Cookish v.
Cunningham, 787 F.2d 1, 2 (1st Cir. 1986) (“an indigent litigant
must demonstrate exceptional circumstances in his or her case to
justify the appointment of counsel”); Weir v. Potter, 214
F.Supp.2d at 54.

Plaintiff attached an affidavit to the motion

which establishes his indigency.
With respect to exceptional circumstances, a court
“examine[s] the total situation, focusing, inter alia, on the
merits of the case, the complexity of the legal issues, and the
litigant’s ability to represent himself.”

DesRosiers v. Moran,

949 F.2d at 23; see Weir v. Potter, 214 F.Supp.2d at 54 (in
assessing whether exceptional circumstances exist to warrant

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appointment, courts consider “merits of the case, the litigant’s
capability of conducting a factual inquiry, the complexity of the
legal and factual issues, and the ability of the litigant to
represent [him]self”).
are not complex.

In the case at bar, the factual issues

Rather, they involve a discrete set of facts

regarding medical care and alleged retaliation.

Moreover, this

court set out those facts in the March 2, 2015 Report and
Recommendation and the March 2016 Report and Recommendation.

As

evidenced by plaintiff’s filings, he is intimately familiar with
the relevant facts.
The March 2, 2015 Report and Recommendation also delineated
the legal standard applicable to denied or delayed medical care
under the Eighth Amendment.

The March 2016 Report and

Recommendation reiterated that standard and detailed the law
relative to a section 1983 retaliation claim.
In short, neither the law nor the facts are complex under
the circumstances.

Plaintiff also shows a detailed understanding

of the facts and an adequate ability to represent himself.
CONCLUSION
In accordance with the foregoing discussion, the motion for
appointment of counsel (Docket Entry # 118) is DENIED without
prejudice.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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