Fox v. Strafford County Department of Corrections, Superintendent

Filing 35

ORDER granting 33 Motion to to file an addendum [Amend] the 1 Complaint. The Court directs that counsel be appointed for the limited purpose of assisting the plaintiff in identifying defendants to his viable claims (on condition that the clerk's office can locate a willing pro bono counsel.) So Ordered by Magistrate Judge Landya B. McCafferty.(jab)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Duane Leroy Fox
v.

Civil No. 11-cv-295-SM

Superintendent, Strafford County
Department of Corrections, et al.

O R D E R
Before the court is Duane Fox’s “Motion to Amend Complaint”
(doc. no. 33).

For the reasons explained herein, the motion is

construed as a motion to file an addendum to the complaint, and
is granted.

Further, the court directs that counsel be

appointed (on condition that the clerk’s office can locate a
willing pro bono counsel) for the limited purpose of assisting
Fox in identifying defendants to his viable claims.
Motion to Amend
The motion to amend (doc. no. 33) presently before the
court adds factual detail to the claims asserted in Fox’s
complaint.

Because the motion does not seek to replace the

entire complaint, the court construes the motion as a motion to
file an addendum to the complaint.

Because there has been no

service upon any defendant in this case, there is no prejudice

to any party in allowing Fox to file an addendum to his
complaint.

Accordingly, the motion (doc. no. 33) is granted.

The assertions included in the motion will be considered to be
an addendum to the complaint.
Appointment of Counsel
In this action, Fox has asserted claims upon which relief
might be granted against certain Strafford County House of
Corrections (“SCHC”) officers, alleging that they failed to
protect him from harm at the SCHC.

See Report and

Recommendation (doc. no. 25); see also Order Approving Report
and Recommendation (doc. no. 30).

The only defendant identified

by name in this action to date, former SCHC superintendent
Warren Dowaliby, has been dismissed from this action.

See id.

While the court has authorized claims to go forward, Fox has not
provided the court with the names and addresses of any other
defendant.
In an order issued June 18, 2012 (doc. no. 26), Fox was
directed to “ascertain the names and addresses of the SCHC
correctional officers who were working on E pod when the alleged
assaults occurred.”

The court directed that Fox contact the

SCHC and request the information, and then forward the
information to the court so that the court could proceed with a

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service order.

See Order (doc. no. 26).

Fox has now contacted

the court and demonstrated that he has attempted to contact the
SCHC by sending a letter to Dowaliby, at the SCHC address.

See

Copy of Letter to Dowaliby (doc. no. 31).
Fox states that the letter was returned to him because
there is a new superintendent at the SCHC.

Fox then called the

SCHC and was advised by the superintendent’s secretary that in
order to obtain the information, Fox would have to send the SCHC
a copy of this court’s June 18, 2012, order by certified mail.
Fox states that he is attempting to do that.

At the time Fox

last contacted the court, however, he was scheduled to be
transferred the following day, August 31, 2012, from a prison in
Virginia to a prison in Tennessee.

It is not clear what impact

that move might have on Fox’s ability to send a certified letter
to the SCHC.
The court finds that Fox has made good faith efforts to
obtain the information he needs to properly serve this suit, but
has been unable, to date, to do so.

In the interest of moving

this case forward toward a decision on the merits, rather than
allowing the matter to languish while Fox awaits an adequate
response from the SCHC, the court finds that it is appropriate
to appoint counsel for Fox for the limited purpose of assisting

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Fox in obtaining the names and addresses of the officers who
worked on E-Pod at the SCHC while Fox was housed on that unit.1
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, at *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, at *1 (D. Me. Feb. 8, 2010).

The court has no

authority to require counsel to represent a pro se litigant.
See id.

The court may appoint counsel in “exceptional

circumstances,” such that a “denial of counsel [is] likely to
result in fundamental unfairness.”

DesRosiers v. Moran, 949

F.2d 15, 23 (1st Cir. 1991).
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.
1

While, in the instant motion, Fox has not specifically
requested the appointment of counsel, he has twice before
requested that counsel be appointed to represent him in this
matter (doc. nos. 8 and 14). Both motions were denied without
prejudice to being renewed should circumstances in the case
warrant (doc. no. 19).
4

Doherty, 2012 WL 381249 at *2 (internal quotation marks and
citation omitted).

In determining that Fox should be appointed

counsel for the limited purpose of assisting him in obtaining
the names of certain defendants in this case, the court has
considered all of the relevant circumstances, including the
merits of the case, the complications that appear to exist in
obtaining the names of the defendants in this case, and Fox’s
ability, given his out-of-state incarceration, to effectively
represent himself at this stage of the proceedings.

See id.

The court concludes that appointment of counsel is appropriate
at this time, and directs that counsel be appointed, on the
condition that suitable counsel may be identified and is
available and willing to accept the appointment 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
Fox 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.

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Counsel, upon

request, may have twenty-one days to review the documents in the
case and to communicate with Fox before making a decision as to
whether to accept an appointment in this matter.
If the court is unable to secure counsel willing to
represent Fox pro bono in this matter by September 30, 2012, the
Clerk will promptly notify Fox that pro bono counsel was not
able to be appointed in this matter.
SO ORDERED.

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

September 10, 2012

Duane Leroy Fox, pro se

LBM:jba

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