Smith v. The Postmaster General

Filing 7

Magistrate Judge Marianne B. Bowler: ORDER entered denying without prejudice 2 Motion to Appoint Counsel ; denying 3 Motion for Leave to Proceed in forma pauperis. The Clerk shall substitute the current Postmaster General, Megan Brennan, as th e sole defendant. The Clerk shall issue a summons and the United States Marshal shall serve a copy of the summons, complaint, consent package, and this Order upon the defendant as directed by plaintiff with all costs of service to be advanced by the United States. (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOAN Y. SMITH,
Plaintiff,
v.

CIVIL ACTION NO.
14-12957-MBB

POSTMASTER GENERAL PATRICK R.
DONAHOE
Defendant.
ORDER
March 11, 2015
BOWLER, U.S.M.J.
1.

The motion (#3) for leave to proceed in forma pauperis

is GRANTED.
2.

The Clerk shall provide the plaintiff with the form for

Consent/Refusal of Magistrate Judge Jurisdiction and the
instructions for that form ("consent package").
3.

The Clerk shall substitute the current Postmaster

General, Megan Brennan, as the sole defendant.
The plaintiff identified named the “Postmaster General” and
then-Postmaster General as defendants.

Since the filing of the

complaint, Megan Brennan has assumed the position of Postmaster
General.

Because it appears that the plaintiff intended to bring

this action against Donahoe in his official capacity, Postmaster
Brennan is now the proper defendant and the Court may order the
substitution.

See Fed. R. Civ. P. 25(d).

If the Court has

misunderstood the plaintiff’s designation of the defendants, she
shall immediately inform the Court in writing.
4.

The Clerk shall issue a summons and the United States

Marshal shall serve a copy of the summons, complaint, consent
package, and this Order upon the defendant as directed by

plaintiff with all costs of service to be advanced by the United
States.
5.

The motion (#2) for appointment of counsel is DENIED

WITHOUT PREJUDICE to renewal after the defendant has responded to
the complaint.
Although the Court “may request an attorney to represent any
person unable to afford counsel,” 28 U.S.C. §1915(e)(1), a civil
plaintiff lacks a constitutional right to free counsel, see
DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991).

The Court

does not have the funds to pay attorneys to represent plaintiffs
in civil cases, and it is very difficult for the Court to find
attorneys who will accept appointment as pro bono counsel.

In

order to qualify for this scarce resource, a party must be
indigent and exceptional circumstances must exist such that the
denial of counsel will result in fundamental unfairness impinging
on the party’s due process rights.
23.

See DesRosiers, 949 F.2d at

In determining whether there are exceptional circumstances

sufficient to warrant the appointment of counsel, a court must
examine the total situation, focusing on the merits of the case,
the complexity of the legal issues, and the litigant’s ability to
represent himself.

See id. at 24.

Because the defendant has not

been served with or responded to the complaint, the Court cannot
determine whether exceptional circumstances exist that would
justify appointment of counsel.
SO ORDERED.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
UNITED STATES MAGISTRATE JUDGE

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