Moulton v. Carroll County Department of Corrections et al

Filing 59

ORDER conditionally granting 47 Motion to Appoint Counsel. Conditioned on the availability and willingness of suitable counsel to represent Moulton on a pro bono basis. The clerk shall notify Moulton by April 2, 2012, whether suitable representation has been secured. So Ordered by Magistrate Judge Landya B. McCafferty.(cmp)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Richard Moulton
v.

Civil No. 11-cv-391-JL

Carroll County Department
of Corrections et al.
O R D E R
Before the court is Richard Moulton’s motion for
appointment of counsel (doc. no. 47).
no. 48).

Defendants object (doc.

The motion is conditionally granted, as explained

herein.
Background
Richard Moulton is presently an inmate at the New Hampshire
State Prison who was previously housed at the Carroll County
Department of Corrections (“CCDC”).

In this action, Moulton

seeks injunctive relief and damages for the alleged failure of
CCDC officials to provide him with adequate dental care while
Moulton was housed at the CCDC.

The court has directed service

of the complaint in this matter (doc. no. 27).

The court has

also conducted a hearing on Moulton’s request for preliminary
injunction, and recommended the issuance of an injunction
directing defendants to provide certain dental care to Moulton

(doc. nos. 26 and 50).

The district judge has not yet ruled on

the recommendation.1
Moulton, who has proceeded pro se in this matter thus far,
asserts that he is unable to adequately represent himself in
this action due to his lack of legal training and the complexity
of the issues in this case.

Moulton further states that he is

unable to afford to retain an attorney and has not been able to
obtain counsel on his own.
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), this court has statutory authority, in
its discretion, to request that counsel represent an indigent
plaintiff.

See 28 U.S.C. § 1915(e)(1); Doherty v. Donohoe, No.

12-10125-NMG, 2012 WL 381249, *2 (D. Mass. Feb. 2, 2012).

No

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

See Ruffin v. Brann, No. CV-09-87-

B-W, 2010 WL 500827, *1 (D. Me. Feb. 8, 2010).

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The court has no

Since the report and recommendation in this matter issued,
the court has been notified that Moulton is no longer at the
CCDC and has been transferred to the New Hampshire State Prison.
In an order issued this date, the district judge has directed
plaintiff to show cause why the request for injunctive relief
against CCDC officials should not be denied as moot.
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authority to require counsel to represent a pro se litigant.
See id.
The court may appoint counsel 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 23.

The United States Court of Appeals for the First
Circuit provides the following set of factors to
consider when determining whether to appoint counsel
to an indigent under § 1915: [1] the indigent's
ability to conduct whatever factual investigation is
necessary to support his or her claim; [2] the
complexity of the factual and legal issues involved;
and [3] the capability of the indigent litigant to
present the case.
Doherty, 2012 WL 381249 at *2 (internal quotation marks and
citation omitted).

To make a determination on Moulton’s

request for counsel, this court thus considers all of the
relevant circumstances, including the merits of the case,
the complexity of the legal issues, and the litigant's
ability to represent himself.

See id.

At this point, the court concludes that appointment of
counsel is appropriate, given the nature of the allegations, the
potential merits of the case, and that there is some inherent
complexity in the litigation of a case such as this, requiring
medical knowledge and research, expert witnesses, and factual
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investigation.

Therefore, in an exercise of its discretion, the

court grants the motion (doc. no. 47) 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
Moulton in this matter.

Counsel shall be notified that she or

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 she or he wishes, to visit and speak with Mr.
Moulton at the prison before making a decision as to whether or
not to accept an appointment in this matter.
If the court is unable to secure counsel willing to
represent Moulton pro bono in this matter by April 2, 2012,
Moulton shall receive prompt notice thereof.

No other matter in

the case need by delayed or deferred in the meantime.

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Conclusion
For the foregoing reasons, the motion for appointment of
counsel (doc. no. 47) is granted, conditioned on the
availability and willingness of suitable counsel to represent
Moulton on a pro bono basis.
The clerk shall notify Moulton by April 2, 2012, whether
suitable representation has been secured.
SO ORDERED.

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

March 12, 2012

Richard Moulton, pro se
Stephen A. Murray, Esq.
Corey M. Belobrow, Esq.

LBM:jba

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