Sin v. Massachusetts Department of Correction et al

Filing 33

Magistrate Judge Timothy S. Hillman: ORDER entered denying 21 Motion to Appoint Counsel. (Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

)
THATH SIN,
)
Plaintiff,
)
)
vs.
)
)
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MASSACHUSETTS DEPARTMENT OF
)
CORRECTIONS, JAMES J. SABA,
)
CURTIS A. DEVENEAU, SANDRA RICHARD, )
and MICHAEL DOIRON,
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Defendants.
)
)

CIVIL ACTION
NO. 10-40226-FDS

ORDER
March 15, 2012

HILLMAN, M.J.

Nature of the Proceeding
This matter was referred to me by Order of Reference dated September 9, 2011, for a
decision on Thath Sin’s (“Plaintiff” or “Sin”) Motion For Renewal Of Motion To Appoint
Counsel (Docket No. 21).
Nature of the Case
Sin has filed a Complaint against: the Massachusetts Department of Correction; James J.
Saba, Superintendent of the North Central Correctional Institution, Gardner, Massachusetts
(“NCCI Gardner”); and Curtis A. Deveneau, Sandra Richard, and Michael Doirin, all of whom
are correctional officers assigned to NCCI-Gardner. Sin has asserted claims against the

Defendants under 42 U.S.C. §19831 for violation of his civil rights by: firing him from his
institutional employment based on his race (Cambodian), in violation of the Fourteenth
Amendment; terminating his institutional employment without notice or a hearing, in violation of
his Fourteenth Amendment procedural due process rights; and restricting him from obtaining
new employment, in violation of the Eighth Amendment prohibition against cruel and unusual
punishment.
Background
At the time that he filed his Complaint, Sin filed a Motion to Proceed in forma pauperis
(Docket No. 2) and Motion For Appointment Of Counsel (Docket No. 3). The Court (Saylor,
D.J.) denied his motion to proceed in forma pauperis, without prejudice, for failure to file a
certified prison account statement. Thereafter, Sin filed a certified prison account statement, but
did not file a renewed motion to proceed in forma pauperis. Sin’s motion for appointment of
counsel was denied without prejudice; the Court stated that Sin could renew his motion for
appointment of counsel after the Defendants had filed responsive pleadings (see Docket No. 7).
Shortly after the Defendants filed their answer, Sin filed this renewed motion for appointment of
counsel. Thereafter, the Defendants have filed a motion to dismiss the Complaint, or in the
alternative for summary judgment.

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Sin is proceeding pro se and for that reason, his pleadings will be construed liberally. See Ashmont v.
Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). Sin does not expressly cite to Section 1983, however, given the nature
of his claims and the legal and factual assertions made in support thereof, it appears that his intent is to pursue a
federal civil rights claim

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Discussion
There is no constitutional right to a free lawyer in civil cases. DesRosiers v. Moran, 949
F.2d 15, 23 (1st Cir. 1991); Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986). However,
“[t]here is little question that the district court may in its discretion, under 28 U.S.C. §
[1915(e)(1)][2] appoint counsel to represent an indigent prisoner in a civil rights case.” Childs v.
Duckworth, 705 F.2d 915, 922 (7th Cir. 1983).
The Applicable Legal Standard
In order to qualify for appointment of counsel under Section 1915(e)(1), the party must
be indigent and “exceptional circumstances must exist such that denial of counsel will result in
fundamental unfairness impinging on the party’s due process rights.” DiBuono v. Guckenheimer
Enterprises, Inc., Civ. No. 10-40255-FDS, 2011 WL 180554, (D.Mass. Jan. 13, 2011); Cookish,
787 F.2d at 2. To determine whether exceptional circumstances exist, the court must look to the
totality of the indigent party’s situation. DesRosiers, 949 F.2d at 24. There are several factors
that demonstrate “exceptional circumstances”, such as: “the indigent’s ability to conduct
whatever factual investigation is necessary to support his or her claim; the complexity of the
factual and legal issues involved; and the capability of the indigent litigant to present the case.”
Cookish, 787 F.2d at 3 (internal citations omitted).
These factors are not exclusive. DesRosiers, 949 F.2d at 24 (a court must examine the
total situation and can use a variety of reasons to decide a motion for appointment of counsel).
Other factors the court may use to determine whether to appoint counsel in civil proceedings are:
the likelihood of success of the claim; whether information necessary to support a petitioner’s

2

Formerly, 28 U.S.C. § 1915 (d).
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claims are available in prior court filings; and the petitioner’s prior experience litigating his or
her own claims. United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (noting the “fair
likelihood of success on the constitutional claim” cut towards appointing counsel for habeas
petitioner); Lucien v. Spencer, 534 F.Supp.2d 207, 210 (D.Mass. 2008) (“When a petitioner can
find the information necessary to support his claims in prior court filings, appointment of
counsel is typically not appropriate.”); Carmichael v. Warden, 346 F. Supp. 2d 207, 209 (D.Me.
2004) (noting the “veteran litigator” petitioner's previous involvement in lawsuits and his ability
to file appropriate motions demonstrate an ability to represent himself).
Whether Counsel Should Be Appointed In This Case
Sin has not been granted the right to proceed in forma pauperis and therefore, he has
failed to establish that he is financially eligible for appointment of counsel.3 Nevertheless, for
purposes of the remainder of this discussion, the Court will assume that Sin has satisfied the
indigency requirement. In support of his request, Sin asserts: (1) that if the Court deems
discovery or a trial necessary, then he will require assistance of counsel; (2) his native language
is not English and he is not always able to properly comprehend and express himself in English;
(3) his being incarcerated will limit his ability to effectively litigate because the issues involved
are complex and will require the assistance of a skilled professional to conduct legal research
and investigate and he has very limited knowledge of the law; (4) the evidence in this case is
likely to be conflicting and counsel will be better able to present evidence and cross examine

3

Sin filed a certified copy of his Prisoner Trust Fund Account Statement in November 2010 (Docket No.
6). If Sin’s financial situation has not improved, then it is likely the Court would find him indigent of he were to file
more recent information concerning his finances.

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witnesses; and (5) he has attempted to obtain a lawyer, without success. (See Docket Nos. 3 and
21).
First, the legal issues are complex, but not unusually so and the underlying supporting
facts are straightforward. In his pleadings, Sins has more than adequately articulated the legal
and factual bases of his claims. His pleadings are comprehensive, well thought out and exhibit
that he is literate in the English language. Furthermore, as evidenced by his responses to the
Defendants’ motion to dismiss, Sin has sufficient ability to understand legal issues as they arise
and to draft coherent legal arguments. Finally, the Court must consider the merits of Sin’s
claims. Although at this very early stage of the proceedings the Court has little information from
which to assess the merits of the Sin’s case, the Defendants have filed a dispositive motion
which raises a number of legal arguments which are likely to dispose of at least some, if not all,
of the asserted claims. For that reason, I find that he is not likely to succeed on the merits with
respect to at least some of his case.
I find that Sin has failed to establish that he is indigent and for that reason alone, his
motion for appointment of counsel is denied. Additionally, considering the relevant factors, at
this early stage of the proceedings, I do not find that Sin has demonstrated the existence of
exceptional circumstances sufficient to warrant the appointment of counsel. Therefore, his
motion to appoint counsel is denied, without prejudice.
Conclusion
The Motion For Renewal Of Motion To Appoint Counsel (Docket No. 21) is denied.

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/s/ Timothy S. Hillman
Timothy S. Hillman
United States Magistrate Judge

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