Kargbo v. Hillsborough County Department of Corrections, Superintendent

Filing 16

ORDER Directing US Marshal to Make Service - the clerk's office is directed to prepare/issue summonses for Sgt. Brown and Officers Meurin, Plumpton and Caisse, and forward to the US Marshal's Office (summonses, complai nt (doc nos. 1, 8, 9, and 12), the Report and Recommendation and this Order for service on each defendant; granting 9 Motion to Amend ; and denying without prejudice 10 Motion to Appoint Counsel. So Ordered by Magistrate Judge Landya B. McCafferty.(cmp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Abu B. Kargbo
v.

Civil No. 11-cv-130-SM

James O’Mara et al.

O R D E R
Before the court is pro se plaintiff Abu B. Kargbo’s
initial complaint (doc. no. 1) with two addenda (doc. nos. 8 and
12), and a motion to amend the complaint (doc. no. 9).

Kargbo

has also filed a motion for appointment of counsel (doc. no.
10).

The motions are before the court for disposition, and the

complaint is before the magistrate judge for preliminary review,
pursuant to Local Rule 4.3(d)(2).
I.

Motion to Amend
Kargbo, in his motion to amend the complaint (doc. no. 9),

requests leave to add allegations and assert new claims against
new defendants.
P. 15(a)(1).

The court grants that motion.

See Fed. R. Civ.

The Report and Recommendation issued this date

sets forth this court’s findings and recommendations regarding
all of the claims asserted in the complaint, construed to be

comprised of all of the allegations set forth in doc. nos. 1, 8,
9, and 12.
II.

Motion for Appointment of Counsel
Kargbo has filed a motion for the appointment of counsel

(doc. no. 10) asserting that due to his incarceration and
inability to pay for counsel, he cannot represent himself.
There is 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 left to the discretion of the
court.

See 28 U.S.C. § 1915(d).

The court has discretion to

deny a motion seeking such representation, unless 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, Kargbo has demonstrated an ability to draft cogent
filings, to state certain plausible claims, to describe facts
relevant to his claims, and to identify fact witnesses.
evidentiary hearings have been scheduled in this case.

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No
Kargbo’s

assertions regarding his imprisoned status 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 Kargbo’s
renewing the motion if he can show that changed circumstances
warrant the appointment of counsel.
III. Preliminary Review
As set forth in the Report and Recommendation, Kargbo has
stated plausible claims for relief in the complaint (doc. nos.
1, 8, 9, and 12), for violations of Kargbo’s right to due
process, based on the allegations of excessive force employed by
Sgt. C. Brown and Officers Meurin, Plumpton, and Caisse, and for
violations of Kargbo’s right to equal protection of the laws,
based on allegations of their racial motivation for using such
force.

The court shall therefore order service of the

complaint, as specified below.
Conclusion
1.

The motion for appointment of counsel (doc. no. 10) is

denied, without prejudice to Kargbo’s filing a new motion in

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this case seeking such relief, if any exceptional circumstances
arise in the future that would warrant the appointment of
counsel.
2.

The motion to amend the complaint (doc. no. 9) is

granted.
3.

The clerk’s office is directed to prepare and issue

summonses for the following officers at the Hillsborough County
Department of Corrections:
Plumpton, and Caisse.

Sgt. C. Brown and Officers Meurin,

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 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).
4.

Defendants are instructed to answer or otherwise plead

within twenty-one days of service.

See Fed. R. Civ. P.

12(a)(1)(A).
5.

Kargbo is instructed that all future pleadings,

written motions, notices, or similar papers shall be served

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directly on defendants by delivering or mailing the materials to
them or their attorney(s), pursuant to Fed. R. Civ. P. 5(b).
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
December 22, 2011
cc:

Abu B. Kargbo, pro se

LBM:nmd

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