Gebo v. Thyng

Filing 16

ORDER conditionally granting - on the condition that suitable counsel may be identified and is available and willing to take this matter on a pro bono basis re: 10 Motion to Appoint Counsel. If the Court is unable to secure counsel by 8/31/11, Gebo to receive prompt notice thereof. Deadline for response to R&R extended to 9/15/11. So Ordered by Magistrate Judge Landya B. McCafferty. (dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
John W. Gebo
v.

Civil No. 11-cv-047-JD

Robert Thyng
O R D E R
Before the court is John Gebo’s motion for appointment of
counsel (doc. no. 10).

The motion is conditionally granted, as

explained herein.
Background
John Gebo is an inmate at the New Hampshire State Prison.
Gebo alleges that in September 2005, he was assaulted by another
inmate, a “known gang member.”

Gebo claims that he requested

protective custody status as he believed he was in danger in
general population.

Gebo further claims that he was denied

constitutionally adequate protection from harm by his unit
manager, Robert Thyng, who, knowing of the risk to Gebo’s
safety, placed Gebo in general population rather than in a
protective housing situation.

As a result, Gebo states that he

was again assaulted by a “known gang member” who threw boiling
water on him two days later.

Gebo asserts that he is unable to represent himself in this
action due to debilitating mental health issues and diagnoses.
Gebo further states that he is unable to afford to retain an
attorney.
Discussion
While there is no absolute constitutional right to free
representation in a civil case, DesRosiers v. Moran, 949 F.2d
15, 24 (1st Cir. 1991) (citing Bemis v. Kelley, 857 F.2d 14, 15
(1st Cir. 1988)), counsel’s appointment may be required as a
matter of due process if an indigent plaintiff demonstrates that
there are “exceptional circumstances,” such that a “denial of
counsel [is] likely to result in fundamental unfairness.”
DesRosiers, 949 F.2d at 24.

To determine if “exceptional

circumstances” warrant the appointment of counsel, “a court must
examine 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.”

Id.

This court always has statutory authority, in its
discretion, to request that counsel represent an indigent
plaintiff.

28 U.S.C. § 1915(e)(1).

No funds are generally

available, however, to pay counsel’s fees or costs in such
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circumstances.

See Ruffin v. Brann, No. CV-09-87-B-W, 2010 WL

500827, *1 (D. Me. Feb. 8, 2010).
At this point, the court concludes that appointment of
counsel is appropriate, given both the serious nature of the
allegations and Gebo’s asserted mental illness.

Therefore, in

an exercise of its discretion, the court grants the motion (doc.
no. 10) for appointment of counsel, on the condition that
suitable counsel may be identified and is available and willing
to take this matter on a pro bono basis.
The clerk’s office shall contact suitable counsel, selected
from the list of attorneys registered to file documents
electronically in this court, and request that counsel represent
Gebo in this matter.

Counsel shall be notified that s/he may

decline the requested appointment and that the appointment is
pro bono.

Further, upon request of counsel, the clerk’s office

is authorized to forward to counsel a copy of the pleadings and
other documents in this case.

Counsel, upon request, may have

fourteen days to review the documents in the case and, if s/he
wishes, to visit and speak with Mr. Gebo at the prison before
making a decision whether to accept an appointment in this
matter.

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If the court is unable to secure counsel willing to
represent Gebo pro bono in this matter by August 31, 2011, Gebo
shall receive prompt notice thereof.

To accommodate the time

needed to attempt to secure counsel, the court has extended the
deadline for Gebo to object to the Report and Recommendation
issued this date until September 15, 2011.
Conclusion
For the foregoing reasons, the motion for appointment of
counsel (doc. no. 10) is GRANTED, conditioned on the
availability and willingness of suitable counsel to represent
Gebo on a pro bono basis.
The clerk shall notify Gebo by August 31, 2011, whether
suitable representation has been secured.

The deadline for Gebo

to file a response to the Report and Recommendation issued this
date shall be extended until September 15, 2011.
SO ORDERED.

_____________________________
Landya B. McCafferty
United States Magistrate Judge
Date:
cc:

August 2, 2011

John W. Gebo, pro se

LBM:jba

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