Bobola v. NH Department of Corrections, Commissioner et al

Filing 8

ORDER: As to Defendant Dr. Englander - US Marshal directed to Make Service. As to Defendants Wrenn, Hanks, Campbell, Savage and Kench - Clerk's Office directed to make Service as provided in the Agreement on Acceptance of Service as outlined; answer due within 21 days of service. Motion to Appoint Counsel 6 denied without prejudice. So Ordered by Magistrate Judge Andrea K. Johnstone.(dae)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Matthew D. Bobola
v.

Civil No. 15-cv-039-SM

William Wrenn, Commissioner,
New Hampshire Department of
Corrections1

O R D E R
Before the court is prisoner Matthew Bobola’s Complaint
(doc. no. 1).

The Complaint is before the court for preliminary

review pursuant to 28 U.S.C. § 1915A(a) and LR 4.3(d)(1).

Also

before the court is Bobola’s motion (doc. no. 6) for the
appointment of counsel in this case.
Preliminary Review
Upon review of the complaint, the court finds that it
states cognizable claims alleging violations of Bobola’s Eighth
Amendment right to receive adequate medical care during his
incarceration, pursuant to 42 U.S.C. § 1983, and negligence

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Defendants are: New Hampshire Department of Corrections
(“DOC”) Commissioner William Wrenn, Assistant DOC Commissioner
Helen Hanks, New Hampshire State Prison (“NHSP”) physical
therapist Bernice Campbell, NHSP Physician Celia Englander, NHSP
Nurse Practitioner Lisa Savage, and DOC employee Christopher
Kench. Each defendant is sued in his or her individual and
official capacities.

under state law, pursuant to this court’s supplemental
jurisdiction.

See 28 U.S.C. § 1367.

Accordingly, and without

prejudice to defendants’ filing of a motion to dismiss on any
proper basis, this action may proceed and be served on William
Wrenn, Helen Hanks, Bernice Campbell, Lisa Savage, Christopher
Kench, and Dr. Celia Englander, as set forth below.
Service
To serve Dr. Englander, the Clerk’s office is directed to
prepare and issue a summons for Dr. Englander using this
address: c/o MHM, 105 Pleasant St., 3rd Fl., Concord, NH 03301.
The Clerk’s office is further directed to forward the summons,
along with copies of this Order and the Complaint (doc. no. 1),
to the U.S. Marshal to complete service on Dr. Englander in
accordance with this Order and Fed. R. Civ. P. 4(c)(3) and 4(e).
To serve Wrenn, Hanks, Campbell, Savage, and Kench, the
Clerk’s office is directed to serve electronic copies of this
Order and the Complaint (doc. no. 1) on the New Hampshire Office
of the Attorney General (“AG”), as provided in the Agreement on
Acceptance of Service.

Within thirty days from receipt of these

materials, the AG must submit an Acceptance of Service notice to
the court specifying whether Wrenn, Hanks, Campbell, Savage, and
Kench have authorized the AG to receive service on their behalf.
When the AG files the Acceptance of Service, service will be

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deemed made on the last day of the thirty-day period for all
defendants who accept AG representation, and who the AG agrees
to represent.
If any defendant does not authorize the AG to receive
service on his or her behalf, or the AG declines to represent
any of them, the AG shall, within thirty days from receipt of
the aforementioned materials, provide to the court the last
known address of the defendants who will not be represented by
the AG.

In that event, the Clerk’s office is instructed to

complete and issue a summons for each of those defendants, using
the last known address provided, and forward the summonses,
along with copies of this Order and the Complaint (doc. no. 1),
to the United States Marshal for the District of New Hampshire
(“U.S. Marshal”), to complete service on those defendants in
accordance with this Order and Fed. R. Civ. P. 4(c)(3) and 4(e).
Defendants Wrenn, Hanks, Campbell, Savage, Kench, and Dr.
Englander are instructed to answer or otherwise plead within
twenty-one days of service.

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

Plaintiff 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 defendants
or their attorney(s), pursuant to Fed. R. Civ. P. 5(b).
Motion for Appointment of Counsel (Doc. No. 6)

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Bobola moves for court-appointed counsel (doc. no. 6).
Plaintiff asserts that he is illiterate and intellectually
challenged, and has been able to file a complaint and motion in
this case only with the assistance of a friend at the prison,
but that such assistance will not continue, and is disfavored by
the prison in any event.
Bobola concedes that he expresses ideas and can explain his
thoughts when he speaks.

Without excusing Bobola from the

obligation to file adequate written pleadings, motions,
objections, and other documents in this case, the court notes
that Bobola may request oral argument and hearings on pending
motions, as appropriate.

See LR 7.1(d) (court will consider

granting oral argument where written request is made outlining
the reasons why oral argument may assist the court).
At this preliminary stage of the case, Bobola has not shown
that there are extraordinary circumstances in this case
warranting the appointment of counsel, to avoid any fundamental
unfairness.

Cf. DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir.

1991) (court has discretion to deny motion to appoint counsel to
indigent civil litigants).

Accordingly, the motion for court-

appointed counsel (doc. no. 6) is denied, without prejudice to
renewal should such extraordinary circumstances arise in the
future.

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Conclusion
1.

The court directs service of the Complaint (doc. no.

1) as set forth in this Order.
2.

The motion for appointment of counsel (doc. no. 6) is

denied without prejudice.
SO ORDERED.

__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 9, 2015
cc:

Matthew D. Bobola, pro se

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