Ojo v. Hillsborough County Department of Corrections, Superintendent et al

Filing 21

ORDER denying without prejudice 9 Motion to Appoint Counsel; granting in part and denying in part 13 Motion for Waiver of Service of Summons. Order directs US Marshal to Make Service. Defendant to answer within 21 days of service. Document #10 to be redocketed as an addendum to the complaint. So Ordered by Magistrate Judge Landya B. McCafferty.(dae)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Osahenrumwen Ojo
v.

Civil No. 11-cv-210-JL

Hillsborough County Department
of Corrections, et al.

O R D E R
Before the court is Osahenrumwen Ojo’s complaint (doc. nos.
1, 7 and 10), filed pursuant to 42 U.S.C. § 1983, alleging that
the defendants violated his rights during his incarceration at
the Hillsborough County Department of Corrections (“HCDC”).

The

matter is before the court for preliminary review to determine,
among other things, whether the complaint states any claim upon
which relief might be granted.

See 28 U.S.C. § 1915A(a); United

States District Court for the District of New Hampshire Local
Rule (“LR”) 4.3(d)(2).

Also before the court are several

motions for the court’s consideration, including a motion for
court-appointed counsel (doc. no. 9), a “Motion for Effectuation
and Encapsulation” (doc. no. 10), and a motion for waiver of
service of summons (doc. no. 13).

I.

Motion for Effectuation and Encapsulation (doc. no. 10)
Ojo filed an initial complaint (doc. no. 1) and an addendum

thereto (doc. no. 7).

Ojo then filed a “Motion for Effectuation

and Encapsulation” (doc. no. 10), which the court has examined
and determined to be appropriately construed as an addendum to
the complaint.

Accordingly, the court will so construe the

motion, and will consider the complaint to be comprised of the
original complaint (doc. no. 1) and the two addenda (doc nos. 7
and 10), in the aggregate, for all purposes.

The Clerk’s Office

is directed to redocket the “Motion for Effectuation and
Encapsulation” (doc. no. 10) as an addendum to the complaint.
II.

Motion for Court-Appointed Counsel (doc. no. 9)
Also before the court is Ojo’s motion for a court-appointed

attorney (doc. no. 9).

There is no constitutional right to the

appointment of counsel in a civil case in this court.

See

Maroni v. Pemi-Baker Reg’l Sch. Dist., 346 F.3d 247, 257 (1st
Cir. 2003).

While the court has the discretion to appoint

counsel in a particular case, it should do so “only if
‘exceptional circumstances were present such that a denial of
counsel was likely to result in fundamental unfairness impinging
on [plaintiff’s] due process rights.’”

King v. Greenblatt, 149

F.3d 9, 14 (1st Cir. 1998) (quoting DesRosiers v. Moran, 949

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F.2d 15, 23 (1st Cir. 1991)); Cookish v. Cunningham, 787 F.2d 1,
2 (1st Cir. 1986) (indigent litigant has no constitutional right
to counsel in a civil case and must demonstrate exceptional
circumstances to justify the appointment of counsel).

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.”
DesRosiers, 949 F.2d at 24.
Here, Ojo has asserted that he cannot represent himself due
to his incarceration.

Since the time this motion was filed,

however, Ojo has been released from the HCDC.
Change of Address (doc. nos. 16 and 19).

See Notices of

The circumstances

cited by Ojo in support of his motion, therefore, have abated.
Accordingly, the motion for court-appointed counsel (doc. no. 9)
is DENIED.

The denial is without prejudice to Ojo renewing his

request should circumstances warrant it in the future.
III. Motion for Waiver of Service of Summons (doc. no. 13)
Ojo seeks an order of this court directing that he not be
required to effect formal service in this matter.
granted in forma pauperis status.

Ojo has been

Accordingly, to the extent

this court directs service of the complaint in this matter

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against any defendant, the court will direct the United States
Marshal for the District of New Hampshire (“U.S. Marshal”) to
effect service.

Accordingly, Ojo’s motion seeking a waiver of

the formal service requirement (doc. no. 13) is GRANTED in part,
to the extent that the U.S. Marshal shall effect service, and is
DENIED in all other respects.
IV.

Service
As fully explained in the report and recommendation issued

simultaneously with this Order, Ojo has stated a claim upon
which relief might be granted alleging excessive force claims
against HCDC Officers Medic and Goulding for repeatedly banging
Ojo’s head into a door on February 25, 2011.

Accordingly, the

court directs that the complaint (doc. nos. 1, 7 and 10) be
served on Medic and Goulding.
The clerk’s office is directed to prepare summons forms for
HCDC Officers Medic and Goulding at their place of business:
Hillsborough County House of Corrections, 445 Willow St.,
Manchester, NH

03103.

The clerk’s office shall forward to the

U.S. Marshal’s office: the summonses; the complaint (doc. nos.
1, 7 and 10); the Report and Recommendation issued this date;
and this Order.

Upon receipt of the necessary documentation,

the U.S. Marshal’s office shall effect service upon the named

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defendants.

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

Defendants

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

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

Ojo is instructed that all future pleadings, written
motions, notices, or similar papers shall be served 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 21, 2011
cc:

Osahenrumwen Ojo, pro se

LBM:jba

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