Mejia v. Smith et al

Filing 64

ORDER re 57 MOTION to Appoint Counsel, 58 Declaration filed by Edward Mejia: Mejia's 58 request for more time to conduct discovery under Rule 56(d) is not properly supported and is DENIED. Mejia's 57 motion for appointment of counsel is DENIED. -- Mejia shall filed his objection or response to the Defendants' 42 motion to dismiss or in the alternative for summary judgment on or before Friday, JANUARY 17, 2014. If Mejia should fail to file an objection or respon se to the pending motion within the time allowed, the Court will consider the motion unopposed and the properly supported facts in the motion will be deemed to be admitted by Mejia. So Ordered by Judge Joseph DiClerico (New Hampshire) on 1/3/2014. (A copy of this Order was forwarded via first class mail to Plaintiff Mejia on November 25, 2013.) (Duhamel, John)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF RHODE ISLAND

Edward Mejia a/k/a Jose Maldonado
v.

Civil No. 12-cv-449-JD

Robert Charette, et al.
O R D E R
Edward Mejia, who is also known as Jose Luis Maldonado but
will be referred to as “Mejia”, brought a civil rights action,
arising from events that occurred during his trial on drug
charges.

The remaining defendants, who are United States

Marshals, filed a motion for summary judgment on the claims
against them.

Mejia moves for counsel to be appointed to

represent him in this case and moves pursuant to Federal Rule of
Civil Procedure 56(d) for additional time to respond to the
defendants’ motion for summary judgment in order to conduct
additional discovery.

The defendants object to both of Mejia’s

motions.

Procedural Background
Mejia is proceeding pro se and in forma pauperis.

He

brought civil rights claims against a federal judge, the warden
and officers at the Wyatt Detention Center, and United States
Marshals, arising from events that occurred in February of 2011
during his trial on drug charges.

The court denied his first

motion for appointed counsel on September 6, 2012.

The claims

against all defendants except the marshals were dismissed in
December of 2012 and March of 2013.
The marshals, the only remaining defendants, filed a motion
to dismiss or in the alternative for summary judgment on July 10,
2013.

Mejia moved for discovery to address the marshals’ motion,

filed a declaration pertaining to the events from which his
claims against the marshals arose, moved for discovery of a video
of the area where his altercation with the marshals occurred, and
filed a third motion for discovery.

The marshals moved for a

protective order and to stay the proceedings in this case until
their motion for summary judgment was decided.
The magistrate judge denied the marshals’ motions to stay
and for a protective order and granted Mejia’s motion for
discovery except for records from Donald W. Wyatt Detention
Facility, which the marshals agreed to provide.

As part of that

order, the magistrate provided guidance to Mejia in the
procedural rules pertaining to a motion for summary judgment and
the manner of his response to the motion.

Discussion
Mejia now moves for appointment of counsel and for more time
to conduct additional discovery before responding to the
defendants’ motion.

The defendants oppose both motions.

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I.

Appointment of Counsel
An indigent litigant in a civil case does not have a

constitutional right to counsel.
15, 23 (1st Cir. 1991).

DesRosiers v. Moran, 949 F.2d

Instead, “[t]he court may request an

attorney to represent any person unable to afford counsel.”
U.S.C. § 1915(e)(1).

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As the magistrate judge explained in

addressing Mejia’s prior motion for counsel, the court will
request representation under § 1915(e)(1) only in exceptional
circumstances.

DesRosiers, 949 F.2d at 23.

Exceptional

circumstances are those “such that denial of counsel will result
in fundamental unfairness impinging on the party’s due process
rights.”

Hurt v. United States, 2013 WL 6489951, at *2 (D. Mass.

Dec. 5, 2013) (citing DesRosiers, 949 F.2d at 23).
In support of his motion for counsel, Mejia states that he
is not a United States citizen, that he does not speak or clearly
understand English, that he was provided an interpreter during
his criminal trial, that he is a “lay-man to the laws of the
United States,” and that another inmate helped him file this
action.

Mejia also states that he alleges serious civil rights

violations by the defendants.
Mejia’s filings in this case demonstrate a good
understanding of English and of the applicable procedures and
legal standards.

His claim against the marshals is that they

used excessive force in removing him from a transport van which

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resulted in injuries to his face.

As stated in the order issued

on March 22, 2013, the standard for excessive force in these
circumstances is whether the officers used force “maliciously and
sadistically to cause harm” rather than in a “good-faith effort
to maintain or restore discipline.”

Hudson v. McMillian, 503

U.S. 1, 7 (1992).
The issues raised by Mejia’s claim are factual, that is,
what happened and who did what.

Mejia has sought and received

discovery on the pertinent factual issues, including access to a
DVD of videos of the area where the altercation occurred.

Mejia

has not shown that the absence of counsel to represent him will
result in fundamental unfairness.

II.

Additional Time for Discovery
Citing Federal Rule of Civil Procedure 56(d), Mejia filed a

“Declaration” in which he asserts a need for time to conduct
additional discovery to respond to the defendants’ motion to
dismiss or in the alternative for summary judgment.

To succeed

on a Rule 56(d) motion, a litigant “must submit to the trial
court an affidavit or other authoritative document showing (i)
good cause for his inability to have discovered or marshaled the
necessary facts earlier in the proceedings; (ii) a plausible
bases for believing that additional facts probably exist and can
be retrieved within a reasonable time; and (iii) an explanation
of how those facts, if collected, will suffice to defeat the

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pending summary judgment motion.”

Rivera-Torres v. Rey-

Hernandez, 502 F.3d 7, 10 (1st Cir. 2007) (Rule 56(d) was then
Rule 56(f)); accord Bose Corp. v. Ejaz, 732 F.3d 17, 28 (1st Cir.
2013) (same standard under Rule 56(d)).
In support of his motion, Mejia states that “[t]he discovery
would provide what Deputy United States Marshal struck me while
inside the van,” “what Deputy United States Marshals dragged me
[from] the van,” and “provide all Deputy United States Marshals
that were aware of their excessive force in violation of my
Constitutional right to due process.”

Mejia further asserts that

he will be able to amend the complaint after he receives
additional discovery.
Given the discovery Mejia has already obtained and the prior
extension of time he was granted for more discovery, Mejia’s
request for additional time is not supported by good cause.
Further, Mejia provides no basis to believe that additional facts
exist to support the issues he lists or that such facts would
defeat the defendants’ pending motion.

As such, Mejia’s request

for more time to conduct discovery under Rule 56(d) is not
properly supported and is denied.

Conclusion
For the foregoing reasons, Mejia’s motion for appointment of
counsel (document no. 57) and his declaration under Rule 56(d)
(document no. 58) are denied.

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Mejia shall file his objection or response to the
defendants’ motion to dismiss or in the alternative for summary
judgment on or before Friday, January 17, 2014.

If Mejia should

fail to file an objection or response to the pending motion
within the time allowed, the court will consider the motion
unopposed and the properly supported facts in the motion will be
deemed to be admitted by Mejia.

LR 56.1.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
Sitting by designation
January 3, 2014
cc:

Edward Mejia, pro se
Leslie D. Parker, Esq.
T. David Plourde, Esq.
Jeffrey K. Techentin, Esq.

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