Latimore v. Suffolk County House of Correction et al

Filing 62

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Motion for Appointment of Counsel (Docket Entry # 48 ); Ex Parte Motions for Funds to Hire Investigator (Docket Entry ## 30 , 33 , 38 ); Ex Parte Motion for Funds to Hire Data Retrieval Technician (Docket Entry # 39 ). The motion for appointment of counsel (Docket Entry # 48 ) is DENIED without prejudice and the motions for funds to hire an investigator (Docket Entry ## 30 , 33 , 38 ) and a data retrieval technician (Docket Entry # 39 ) are DENIED. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JASON LATTIMORE,
Plaintiff,

v.

CIVIL ACTION NO.
14-13378-MBB

KENNETH TROTMAN,
RYAN DORGAN,
SHERIFF THOMPKINS AND
LT. BARROWS,
Defendants.

MEMORANDUM AND ORDER RE:
MOTION FOR APPOINTMENT OF COUNSEL (DOCKET ENTRY # 48);
EX PARTE MOTIONS FOR FUNDS TO HIRE INVESTIGATOR (DOCKET
ENTRY ## 30, 33, 38); EX PARTE MOTION FOR FUNDS TO
HIRE DATA RETRIEVAL TECHNICIAN
(DOCKET ENTRY # 39)
June 22, 2016
BOWLER, U.S.M.J.
Plaintiff Jason Lattimore (“plaintiff”), a former inmate at
the Suffolk County House of Corrections (“SCHC”), filed this
civil rights action seeking damages for violations of his
constitutional rights under 42 U.S.C. § 1983 (“section 1983”),
Massachusetts statutes and Massachusetts common law based on an
incident that took place at SCHC in 2014.

In February 2015, this

court allowed plaintiff’s motion to proceed in forma pauperis
under 28 U.S.C. § 1915.

(Docket Entry # 4).

Pending before this

court are the above motions for appointment of counsel (Docket

Entry # 48) and for funds to hire an investigator (Docket Entry
## 30, 33, 38) and a data retrieval technician (Docket Entry #
39) filed by plaintiff.

Although plaintiff filed the latter

motions ex parte under 18 U.S.C. § 3006A, this is not a criminal
prosecution and there is no need to file the motions ex parte.
DISCUSSION
Turning to the request to appoint counsel, “Indigent civil
litigants,” such as plaintiff “possess neither a constitutional
nor a statutory right to appointed counsel.”

Montgomery v.

Pinchak, 294 F.3d 492, 498 (3rd Cir. 2002) (recognizing that 28
U.S.C. § 1915(e)(1) gives the court statutory authority to
request appointed counsel); 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”).

That said, 28 U.S.C. §

1915(e)(1) 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) (citing 28 U.S.C. § 1915(e)(1) and noting that appointment
is discretionary).
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

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justify the appointment of counsel”); Weir v. Potter, 214
F.Supp.2d at 54.

To determine whether exceptional circumstances

exist, 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 24; see Weir v. Potter, 214
F.Supp.2d at 54 (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 the case at bar, the factual issues are not complex.
Rather, they involve an incident that took place on May 29, 2014
and thereafter led to confiscation and destruction of legal
material in plaintiff’s cell.

The amended complaint (Docket

Entry # 37), with the addition of two defendants (Sheriff
Thompkins and Lt. Barrows) in accordance with this court’s June
13, 2016 Order, evidences that plaintiff is capable of
representing himself.

Plaintiff may reapply for appointment in

the event the case proceeds to a more complex stage involving
nonfrivolous claims.

In light of the absence of exceptional

circumstances, appointment of counsel is not warranted.
In addition to appointment of counsel, plaintiff
seeks funds to hire an investigator and a data retrieval

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technician pursuant to the Criminal Justice Act, (“CJA”), 18
U.S.C. § 3006A(e).

The statute, however, applies to certain

criminal defendants and petitioners “seeking relief under
section[s] 2241, 2254, or 2255.”

18 U.S.C. § 3006A(a); Gomez v.

Myers, 627 F.Supp. 183, 186 (E.D.Tex. 1985) (denying funds
because CJA “permits counsel for indigent defendants to request
experts or other services necessary for an adequate defense, 18
U.S.C. § 3006A(e), but Gomez is not defending against a federal
criminal charge”).

Plaintiff is not seeking habeas relief or

defending against a criminal prosecution.

Although plaintiff is

proceeding in forma pauperis under 28 U.S.C. § 1915, this statute
“authorizes the court to direct payment only for the expenses of
preparing a transcript, printing a record on appeal, or serving
process.”

Id. (omitting citations).

“[I]n forma pauperis

Plaintiffs, including pro se inmates, are responsible for their
litigation fees in civil actions.”

Collins v. Bledsoe, 2014 WL

6982938, at *3 (M.D.Pa. Dec. 9, 2014) (quoting Hodge v. U.S.,
2009 WL 2843332, *4–5 (M.D.Pa. Aug. 31, 2009)); accord Woodward
v. Mullah, 2010 WL 3023117, 4 (W.D.N.Y. July 29, 2010).

“‘There

is no constitutional or statutory requirement that the government
or Defendant pay for an indigent prisoner’s discovery efforts.’”
Brown v. Ross County, 2014 WL 4284874, at *2 (S.D.Ohio Aug. 28,
2014).
CONCLUSION
In accordance with the foregoing discussion, the motion for
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appointment of counsel (Docket Entry # 48) is DENIED without
prejudice and the motions for funds to hire an investigator
(Docket Entry ## 30, 33, 38) and a data retrieval technician
(Docket Entry # 39) are DENIED.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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