Lopes v. Riendeau et al

Filing 157

Judge Nathaniel M. Gorton: ORDER entered denying 152 Motion to Appoint Counsel. Lopes is granted 35 days from the date of this Memorandum and Order to file his response to the motions for summary judgment. The Clerk shall mail to Lopes a copy of this Memorandum and Order along with copies of defendants statements of material facts: Docket Nos. 139, 149 and 155. Reply papers, if any, shall be filed within 7 days of receipt of any response by Lopes. Failure of Plaintiff to file a response will result in the Court considering the motions on the record before it. (Attachments: # 1 Appendix Berg SOF 155, # 2 Appendix Nickl Riendeau SOF 149, # 3 Appendix MPCH SOF 139) (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DANA E. LOPES,
Plaintiff,
v.
GERALDINE RIENDEAU, et al,
Defendants.

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Civil Action No.
14-10679-NMG

MEMORANDUM AND ORDER
GORTON, J.
The instant pro se action was filed on February 24, 2014, by
Plaintiff Dana E. Lopes (“Lopes”), an inmate in custody of the
Massachusetts Department of Correction.

Plaintiff’s original

complaint alleges retaliation and a denial of medical care under
42 U.S.C. § 1983 and state law against nine defendants.

Some of

the defendants, as well as some of Plaintiff’s claims, have been
dismissed.

This case has a lengthy history and the facts and

procedural history have been recounted in earlier orders and need
not be repeated here.
Pending before this Court are motions for summary judgment
under Fed. R. Civ. P. 56 (“Rule 56”) filed by defendants Barbara
Berg (“Berg”); Dyana Nickl (“Nickl”) and Geraldine Riendeau
(“Riendeau”); and Paul Caratazzola (“Caratazzola”), Patricia
Davenport-Mello (“Davenport”) and Massachusetts Partnership for
Correctional Healthcare (“MPCH”) (collectively “MPCH
defendants”).

See Docket Nos. 137, 147 and 153.

Also pending

before this Court is a letter from Lopes requesting appointment
of counsel.

See Docket No. 152.
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I.

Plaintiff’s Request for Appointment of Counsel
Lopes seeks to have this Court appoint counsel to represent

him in this matter.

See Docket No. 152.

The letter, signed by

Lopes on July 6, 2016, was filed before Lopes was served with
defendants’ motions for summary judgment.

The letter states,

among other things, that he has unsuccessfully sought appointment
of counsel twice and that the inmate that had assisted Lopes is
no longer assisting him.

At the time of the letter, Lopes had

returned from major back surgery at Boston Medical Center and was
“sick with cancer of [his] liver still and not doing well at
all.”

Lopes states that he has a ninth grade education and

doesn’t “know anything about law [himself and he doesn’t] read or
understand the laws of this Court.”
As explained in earlier orders, indigent civil litigants
possess neither a constitutional nor a statutory right to free
counsel.

Under 28 U.S.C. § 1915(e)(1), the Court has the

discretion to appoint counsel “for any person unable to afford
counsel.”

28 U.S.C. § 1915(e)(1).1

In order to obtain appointed

counsel, a party must show indigency and exceptional
circumstances.
1991).

DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir.

Here, Lopes has been permitted to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915.
1

See Docket No. 5.

In this District, there is no Plan authorizing the payment
for counsel appointed for civil litigants such as the Plaintiff.
Any appointment of counsel would therefore be contingent upon the
availability of pro bono counsel to accept voluntarily an
appointment. Cf. 18 U.S.C. § 3006A (providing for appointment of
counsel in habeas petitions under 28 U.S.C. § 2241, § 2254 and
motions under § 2255 and payment under the Criminal Justice Act).
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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 53, 54 (D.
Mass 2002) (in assessing whether exceptional circumstances exist
to warrant 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”).
In denying one of Lopes’ requests for counsel, Magistrate
Judge Marianne B. Bowler noted that the factual issues are not
complex and “involve a discrete set of facts regarding medical
care and alleged retaliation.”
Order, Docket No. 121.

See 03/03/16 Memorandum and

The Court notes that the March 3, 2016

Report and Recommendation delineates the legal standards
applicable to Section 1983 retaliation and inadequate medical
care claims.

See Docket No. 120.

Accordingly, Lopes’ request for appointment of counsel is
denied and he will be granted an opportunity to respond to
defendants’ motions for summary judgment.
II.

Defendants’ Motions for Summary Judgment
Most recently, the Court granted, solely as to Nasuti, the

MPCH defendants’ motion for judgment on the pleadings (Docket No.
97) and allowed Riendeau and Nickl’s motion for summary judgment
(Docket No. 99) as to the Section 1983 Eighth Amendment and
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retaliation claims.

See 3/30/2016 Order (Docket No. 125)

adopting in part, rejecting in part 3/3/16 Report and
Recommendation.

The instant motions for summary judgment ask the

Court to make a final judgment dismissing the remaining claims in
this action.

See Docket Nos. 137, 147 and 153.

Lopes will be

granted an opportunity to address these motions, and if he
chooses not to file a response, the Court may consider the
motions based on the record before it.

Cordi–Allen v. Halloran,

470 F.3d 25, 28 (1st Cir. 2006).
Lopes will be granted the opportunity to respond to the
defendants' assertion of facts as required by Fed. R. Civ. P.
56(c) and Local Rule 56.1.

In order to prepare a concise

statement of material facts, Lopes’ shall admit and/or deny each
of the defendants’ statements in matching numbered paragraphs.2
In certain circumstances, instead of admitting or denying a
statement of material fact, Plaintiff may dispute it by “showing
that the materials cited [by the defendants] do not establish the
absence...of a genuine dispute [of fact].”

Federal Rule of Civil

Procedure 56(c)(1)(B) (emphasis added).
If plaintiff files a statement of material facts, the
defendants will be granted 14 days to file reply papers.
ORDER
For the foregoing reasons, plaintiff’s motion to appoint

2
In other words, Plaintiff’s paragraph “1" should admit or deny
defendants’ paragraph “1", Plaintiff’s paragraph “2" should admit or deny
defendants’ paragraph “2", and so on. Any additional material facts Plaintiff
wishes to raise must be set forth separately from Plaintiff’s admissions or
denials of the defendants’ statements of material facts.

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counsel (Docket No. 152) is DENIED.

Lopes is granted 35 days

from the date of this Memorandum and Order to file his response
to the motions for summary judgment.

The Clerk shall mail to

Lopes a copy of this Memorandum and Order along with copies of
defendants’ statements of material facts: Docket Nos. 139, 149
and 155.

Reply papers, if any, shall be filed within 7 days of

receipt of any response by Lopes.

Failure of Plaintiff to file a

response will result in the Court considering the motions on the
record before it.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated: December 5, 2016

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