Blackmer v. Fortier et al

Filing 18

ORDER granting in part and denying in part 12 Motion to clarify. Blackmers motion to clarify (doc. no. 12) is GRANTED IN PART, to the extent that the court clarifies herein its prior orders relating to service of process. The motion is DENIED as to the request for appointment of counsel and in all other respects, without prejudice to Blackmer filing a motion for appointment of counsel if the district judge does not accept the Report and Recommendation issued this date. So Ordered by Magistrate Judge Landya B. McCafferty.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Paul Blackmer
v.

Civil No. 11-cv-079-SM

Paul Fortier et al.
O R D E R
Before the Court is pro se prisoner Paul Blackmer’s
“Motion for Assistance of the Court” (doc. no. 12), in which
Blackmer has requested clarification of this court’s orders with
respect to service of process, and an appointment of counsel to
help him with service.
provided below.
I.

A clarification of the court’s orders is

The request for counsel is denied.

Clarification
Blackmer initiated this lawsuit by filing a document

entitled, “Formal Request That the Court Shall Order Stay of
Limitations Regarding Paul Blackmer Approach That Intends to
Seek No More than Just 42 U.S.C. § 1983 (§ 1985?) Redress.”
Blackmer specifically requested in that filing that the statute
of limitations applicable to his section 1983 claims arising
from an August or September 2008 disciplinary hearing be tolled
to enable him to file an action in the future.

He asserted that

he needed such relief because he could not obtain a tape
recording of that August or September 2008 disciplinary hearing.

In an Order issued on February 24, 2011 (doc. no. 2), this
court construed the factual allegations set forth in that
initial filing (doc. no. 1) to be a complaint, intended to
initiate a civil rights lawsuit within the statute of
limitations for claims arising in August or September 2008,
subject to Blackmer’s ability to amend that complaint, in
accordance with Fed. R. Civ. P. 15 and this court’s orders.
That Order (doc. no. 2) had the effect of mooting the request
that the statute of limitations be tolled, insofar as it caused
Blackmer’s lawsuit to be filed before the limitations period
expired.

The court directed Blackmer to pay the filing fee or

to file an in forma pauperis motion.

See Order (doc. no. 3).

Blackmer filed such a motion.

The court granted Blackmer leave

to proceed in forma pauperis.

See Order (doc. no. 11).

As noted in the Report and Recommendation this date, the
court has construed all of the claims and factual allegations
asserted in the initial filing (doc. no. 1) and in the addenda
filed by Blackmer (doc. nos. 4 and 10) to constitute the
complaint in this action for all purposes.

For reasons stated

in that Report and Recommendation, the magistrate judge has
recommended dismissal of all of Blackmer’s claims in the
complaint (doc. nos. 1, 4, and 10).

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II.

Appointment of Counsel
There is no absolute 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).

Rather, appointment of counsel

in a civil case is left to the discretion of the court.
U.S.C. § 1915(d).

See 28

An appointment is warranted if an indigent

litigant demonstrates that exceptional circumstances exist, such
that without counsel the litigant most likely would be unable to
obtain due process of the law.

See King v. Greenblatt, 149 F.3d

9, 14 (1st Cir. 1998).
Blackmer has failed to show that there are any exceptional
circumstances in this case warranting an appointment of counsel.
Blackmer has cited his inability to photocopy documents and his
need to serve process as reasons for such an appointment.
Counsel is not needed to help serve process, however, as
Blackmer is proceeding in forma pauperis.

This court generally

provides assistance to pro se in forma pauperis plaintiffs if
the court, following preliminary review of the complaint,
directs that process be served.
Local Rule 4.3(d)(2)(C).

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

Here, the court has recommended

dismissal of all claims in this action and has not ordered
service at this time.

For those reasons, the court

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denies Blackmer’s request that counsel be appointed to represent
him and to assist with service of process.
The denial of the request for counsel’s appointment is
without prejudice to Blackmer’s filing a motion for such an
appointment in the future, in the event that the district judge
rejects the recommendation of dismissal.

Blackmer would be

required to show in such a motion that there are exceptional
circumstances warranting counsel’s appointment.
Conclusion
Blackmer’s motion to clarify (doc. no. 12) is GRANTED IN
PART, to the extent that the court clarifies herein its prior
orders relating to service of process.

The motion is DENIED as

to the request for appointment of counsel and in all other
respects, without prejudice to Blackmer filing a motion for
appointment of counsel if the district judge does not accept the
Report and Recommendation issued this date.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
December 13, 2011
cc:

Paul Blackmer, pro se

LBM:nmd

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