Podkulski v. Doe et al

Filing 32

ORDER denying 25 MOTION for Interrogatories, denying 26 MOTION for Production of Documents, denying without prejudice 30 MOTION to Appoint Counsel, ORDER Directing clerk to forward Summonses and Documents as outlined to the US Marshal to Make Service. So Ordered by Magistrate Judge Landya B. McCafferty.(cmp) Modified on 5/4/2012 to add date filed: (cmp).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Steve Podkulski
v.

Civil No. 11-cv-102-JL

Jane Doe et al.

O R D E R
Before the court is pro se plaintiff Steve Podkulski’s
First Amended Complaint (doc. no. 23), two discovery motions
(doc. nos. 25 and 26), and a motion for appointment of counsel
(doc. no. 30).
I.

Discovery Motions
Federal Rule of Civil Procedure 26(d)(1) permits the

parties in this case to engage in discovery before meeting to
agree upon a discovery plan.

See Fed. R. Civ. P.

26(a)(1)(B)(iv) (actions filed by pro se inmates are exempt from
initial disclosure requirements); Fed. R. Civ. P. 26(d)(1)
(discovery moratorium does not apply to cases exempted from
initial disclosure requirements).

The local and federal rules

of procedure generally prohibit parties from filing discovery
requests and responses without the court’s leave, unless
accompanied by a discovery motion.

See Fed. R. Civ. P. 5(d)

(“discovery requests and responses must not be filed until they
are used in the proceeding or the court orders filing”); LR 37.1
(regarding form of discovery motions).
The discovery “motion[s]” filed by this pro se plaintiff
(doc. nos. 25 and 26) may have been intended to be discovery
requests, which can be served without notice to the court.

To

the extent that the motions seek a court order to compel
responses, however, the motions are premature; defendants did
not have time to respond to the requests served upon them before
the motions were filed, and the parties did not have an
opportunity to resolve issues without the court’s intervention.
See Fed. R. Civ. P. 37(a).

Therefore, plaintiff’s discovery

motions (doc. nos. 25 and 26) are denied.
II.

Motion for Appointment of Counsel (doc. no. 30)
Podkulski seeks appointed counsel because, he asserts, he

is unable to pay for an attorney, he has limited knowledge of
the law, and his incarceration out of state hinders his ability
to engage in discovery or investigate his claims.

There is,

however, no absolute constitutional right to free legal
representation in a civil case.

See Maroni v. Pemi-Baker Reg’l

Sch. Dist., 346 F.3d 247, 257 (1st Cir. 2003); King v.
Greenblatt, 149 F.3d 9, 14 (1st Cir. 1998).

Rather, appointment

of counsel in a civil case is discretionary, see 28 U.S.C.

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§ 1915(d).

Failing to appoint counsel in a civil case may

constitute an abuse of discretion if the indigent litigant
demonstrates that exceptional circumstances exist, such that
fundamental unfairness impinging upon his or her right to due
process is likely to result if counsel is not appointed.

See

King, 149 F.3d at 14 (citing DesRosiers v. Moran, 949 F.2d 15,
23 (1st Cir. 1991)).
Here, Podkulski has demonstrated an ability to draft cogent
filings, to state plausible claims, to describe facts relevant
to his claims, and to draft discovery requests.
hearings have been scheduled in this case.

No evidentiary

Podkulski’s

assertions regarding his out-of-state imprisoned status,
inexperience, and lack of funds are insufficient to demonstrate
that, without court-appointed counsel, he is likely to suffer
any fundamental unfairness or due process violation.

Therefore,

an appointment of counsel is not warranted at this time.
Accordingly, the motion for appointment of counsel is denied
without prejudice to Podkulski renewing the motion if changed
circumstances warrant the appointment of counsel.
III. Preliminary Review of First Amended Complaint
For reasons stated in a report and recommendation issued on
this date, the court directs service of the top bunk
endangerment claim, set forth in the First Amended Complaint

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(doc. no. 23), against Officer FNU Donovan and Sgt. FNU Ballis,
in their individual capacities.

Additionally, the court directs

Officer Barbera to respond to the human waste endangerment
claim, and directs Barbera and Sgt. Gordon, in their individual
capacities, to respond to the excessive force and First
Amendment retaliation claims in the First Amended Complaint
(doc. no. 23).

Conclusion
For the foregoing reasons:
1.

The discovery motions (doc. nos. 25 and 26) are

denied.
2.

The motion for appointment of counsel (doc. no. 30) is

denied without prejudice to Podkulski renewing the motion if
changed circumstances warrant the appointment of counsel.
3.

The clerk’s office is directed to prepare and issue

summonses for HCDC Sergeant FNU Ballis and HCDC Officer Donovan,
at the Hillsborough County House of Corrections, 445 Willow
Street, Manchester NH.

The clerk’s office shall forward to the

United States Marshal for the District of New Hampshire (the
“U.S. Marshal’s office”): the summonses; the complaint (doc. no.
1); the First Amended Complaint (doc. no. 23); the report and
recommendation issued December 20, 2011 (doc. no. 13); the order

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issued April 18, 2012 (doc. no. 27) (approving that Report and
Recommendation); the report and recommendation issued on this
date; and this order.

Upon receipt of the necessary

documentation, the U.S. Marshal’s office shall serve process on
each defendant.

See Fed. R. Civ. P. 4(c)(3).

Defendants are

instructed to answer or otherwise plead within twenty-one days
of service.
4.

See Fed. R. Civ. P. 12(a)(1)(A).

Officer Barbera is directed to file a response to the

human waste endangerment claim, asserted in the First Amended
Complaint (doc. no. 23), within fourteen days of the date of
this Order.
5.

Sgt. Gordon and Officer Barbera are directed to file

their answer to the excessive force and First Amendment
retaliation claims asserted in the First Amended Complaint (doc.
no. 23), within fourteen days of the date of this Order.
SO ORDERED.
_______________________________
Landya McCafferty
United States Magistrate Judge
May 3, 2012
cc:

Steve Podkulski, pro se
John Curran, Esq.

LBM:nmd

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