Osei v. A.T. Wall et al
Filing
9
MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel. So Ordered by Judge William E. Smith on 7/29/13. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
)
)
)
v.
)
)
ASHBEL T. WALL, DIRECTOR,
)
et al.,
)
Defendants.
)
______________________________)
RUDOLPH VALENTINO OSEI,
Plaintiff,
C.A. No. 12-717-S
MEMORANDUM AND ORDER
WILLIAM E. SMITH, United States District Judge.
Before the Court is a civil rights Complaint (ECF No. 1)
filed by Plaintiff Rudolph Valentino Osei, pro se, an inmate at
the
Adult
Correctional
Institutions
(“ACI”),
Island, pursuant to 42 U.S.C. § 1983.
Cranston,
Rhode
Osei has also filed an
Application to Proceed without Prepayment of Fees and Affidavit
(ECF
No.
2)
(“Application”)
and
Counsel (ECF No. 3) (“Motion”).
a
Motion
for
Appointment
of
Although Osei has now complied
with the procedural requirements of 28 U.S.C. § 1915(a), the
Court is required to screen the Complaint pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A.
Having done so, the Court finds, on
initial
Complaint
relief
review,
may
be
discussed below.
that
the
granted
and
may
go
states
forward
a
claim
for
the
on
which
reasons
I.
Complaint
A.
Law
In
connection
with
proceedings
in
forma
pauperis,
§ 1915(e)(2) instructs the Court to dismiss a case at any time
if the Court determines that the action: 1) is frivolous or
malicious; 2) fails to state a claim on which relief may be
granted; or 3) seeks monetary relief against a defendant who is
immune from such relief.
28 U.S.C. § 1915(e)(2).
Similarly,
§ 1915A directs courts to screen complaints filed by prisoners
against
a
governmental
entity,
officer,
or
employee
of
such
entity and dismiss the complaint, or any portion thereof, for
reasons identical to those set forth in § 1915(e)(2).
28 U.S.C.
§ 1915A.
The legal standard for dismissing a complaint for failure
to
state
a
claim
pursuant
to
§
1915(e)(2)
and
§
1915A
is
identical to the standard used when ruling on a Rule 12(b)(6)
motion.
Chase v. Chafee, No. CA 11-586ML, 2011 WL 6826504, at
*2 (D.R.I. Dec. 9, 2011); see also Fridman v. City of New York,
195 F. Supp. 2d 534, 538 (S.D.N.Y. 2002).
“To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”
Ashcroft v. Iqbal, 566 U.S. 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
B.
Discussion
In
brief,
the
Complaint
alleges
that
Plaintiff
was
subjected to cruel and unusual punishment in violation of his
rights
under
the
Constitution.
The
regarding
a
drawn
another
by
Eighth
Amendment
alleged
portrait
of
incident
Plaintiff
inmate
to
and
United
began
and
ended
the
his
with
with
States
an
issue
deceased
cousin
Plaintiff
being
transported to Rhode Island Hospital by ambulance.
In the
interim, Plaintiff claims that he was beaten by two named
Defendants, Correctional Officers Glendinning and Gass, and at
least one unnamed Defendant 1 who is described in the Complaint
as
the
“escorting
C.O.”
Plaintiff
alleges
that
the
correctional officers used excessive force.
Plaintiff further alleges that
Director
Wall,
Warden
Weeden,
and
three other Defendants,
Deputy
Warden
Auger
had
actual knowledge of these events and did nothing to stop or
“fix”
them,
thereby
demonstrating
deliberate
indifference.
Plaintiff also claims that Warden Weeden created or enforces a
policy or custom that easily opens the door to the kind of
violation(s) described above by allowing correctional officers
to take an inmate to segregation at their own discretion,
1
Plaintiff has named three “John Doe” correctional officers
as Defendants.
without
clearing
such
action
with
their
supervisors.
All
Defendants are sued in their individual capacities.
Reviewing
Gamble,
Osei’s
429
U.S.
pro
97,
se
106
Complaint
(1976),
liberally,
accepting
Estelle
his
v.
factual
allegations as true, Alt. Energy, Inc. v. St. Paul Fire & Marine
Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001), and construing all
reasonable inferences in his favor, id., the Court concludes
that, at this initial stage, Osei has stated sufficient facts to
proceed with his Complaint.
II.
Application
Osei has submitted the affidavit required by 28 U.S.C §
1919(a)(1) and a copy of his inmate account statement, certified
by
an
appropriate
Institutions
(“ACI”),
official
as
at
directed
the
by
§
Adult
Correctional
1915(a)(2).
After
reviewing the documents, the Court GRANTS his Application.
Plaintiff is still required to pay the statutory filing fee
of
$350
for
this
action,
however.
Pursuant
to
the
Prison
Litigation Reform Act, adopted April 25, 1996, and codified at
28
U.S.C.
§
1915(b),
a
prisoner
seeking
to
file
in
forma
pauperis must pay, when funds exist, an initial filing fee of
the greater of twenty percent of the average monthly deposits to
his account or the average monthly balance for the six months
prior
to
the
§ 1915(b)(1).
filing
of
his
complaint.
See
28
U.S.C.
Subsequently, a prisoner must pay monthly twenty
percent of the previous month’s balance in his account.
See 28
U.S.C. § 1915(b)(2).
The monthly deposits to Osei’s account during the relevant
period averaged $23.33.
During the same period, his average
monthly balance was $43.38.
Therefore, Osei is required to pay
$8.68 as an initial filing fee.
The ACI is directed to forward
to the Court every month, when funds exist, twenty percent of
the previous month’s balance in Osei’s account each time that
amount exceeds $10.00 until he has paid the entire filing fee of
$350.
Osei shall make his initial payment within thirty (30)
days of the date of this Memorandum and Order.
III. Motion for Appointment of Counsel
Osei has also filed a Motion for Appointment of Counsel.
He
claims
that:
his
imprisonment
will
limit
his
ability
to
litigate; the issues in the case are complex and will require
significant research and investigation; he has limited access to
the law library and knowledge of the law; and, at trial, counsel
would better enable Plaintiff to present evidence and crossexamine witnesses.
The Court DENIES the Motion.
There is no constitutional right to appointed counsel in a
civil case.
Maroni v. Pemi-Baker Reg’l Sch. Dist., 346 F.3d
247, 257 (1st Cir. 2003); King v. Greenblatt, 149 F.3d 9, 14
(1st
Cir.
1998)
(“This
being
a
civil
case,
there
is
no
constitutional right to counsel and the statutory authority is
discretionary.”
(internal
citation
omitted)).
Plaintiff
must
demonstrate that exceptional circumstances are present such that
a
denial
of
counsel
is
likely
to
result
in
unfairness impinging on his due process rights.
Moran, 949 F.2d 15, 23 (1st Cir. 1991).
fundamental
DesRosiers v.
To determine whether
there are exceptional circumstances sufficient to warrant the
appointment
of
counsel,
a
court
must
examine
the
total
situation, focusing on, among other things, the merits of the
case, the complexity of the legal issues, and the litigant’s
ability to represent himself.
Id. at 24.
With respect to the merits of the instant case, although
Plaintiff has plead sufficient facts to pass the preliminary
hurdle, the Court cannot at this early juncture find that his
claims are meritorious.
While the Court expresses no opinion as
to the merits of Plaintiff’s claims, this factor does not weigh
in favor of the appointment of counsel.
As
for
the
complexity
of
the
case,
Plaintiff’s
basic
claims, as set forth in the Complaint, are straightforward.
He
alleges excessive force and deliberate indifference based on the
incident
claims
described
are
not
so
above.
The
complex
as
legal
to
issues
weigh
raised
in
favor
by
these
of
the
himself,
his
appointment of counsel.
Regarding
Plaintiff’s
ability
to
represent
filings demonstrate that he has the ability to draft documents
that are understandable to the Court.
the
Court
is
satisfied
that
Based on these filings,
Plaintiff
has
the
ability
to
represent himself.
Therefore,
the
Court
concludes
that
Plaintiff
has
not
demonstrated exceptional circumstances in his case to justify
the appointment of counsel.
His claimed limitations are common
to most, if not all, prisoners, and his situation is not unique.
Accordingly, the Motion is DENIED.
IV.
Conclusion
Based on the foregoing, the Court finds that the instant
Complaint survives initial scrutiny under §§ 1915(e) and 1915A.
Accordingly,
Osei
may
proceed
with
his
Complaint.
Application to proceed in forma pauperis is GRANTED.
for Appointment of Counsel is DENIED.
IT IS SO ORDERED.
/s/ William E. Smith
William E. Smith
United States District Judge
Date: July 29, 2013
His
His Motion
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