United States District Court, D. Connecticut
RULING ON PENDING MOTIONS
VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE.
Plaintiff, Raudell Mercado, is currently incarcerated at
MacDougall-Walker Correctional Institution
(“MacDougall-Walker”). He initiated this action
by filing a civil rights complaint against multiple employees
of the State of Connecticut Department of Correction. In
January 2017, the Court concluded that the following claims
would proceed against the Defendants: the Eighth and
Fourteenth Amendment claims of deliberate indifference to
mental health needs and safety and the unconstitutional
conditions of confinement relating to the Plaintiff's
confinement at Northern Correctional Institution
(“Northern”), a Fourteenth Amendment due process
claim relating to the Plaintiff's transfer to Northern
and Cheshire Correctional Institution and his placement in
the administrative segregation programs at those facilities
and a First Amendment retaliation claim should proceed.
January 6, 2017, the Court granted the Plaintiff's motion
for appointment of pro bono counsel. On April 5,
2017, the Defendants filed an answer to the complaint.
Motion for Understanding [ECF No. 71]
Plaintiff seeks clarification with regard to the status of
the Clerk's attempts to find an attorney willing to
represent him in this case. The Court has the authority to
request an attorney to represent any person unable to afford
counsel. 28 U.S.C. § 1915(e)(1). By its express terms,
the statute does not grant indigents the absolute right to
counsel in civil cases; nor does it grant the court the power
to compel counsel to accept the appointment. See 28
U.S.C. § 1915(e)(1) (“The court may
request an attorney to represent any person unable to afford
counsel.”) (emphasis added); Mallard v. U.S. Dist.
Court for Southern Dist. of Iowa, 490 U.S. 296, 310
(1989) (“We hold only that § 1915(d) does not
authorize the federal courts to make coercive appointments of
counsel.”); Hodge v. Police Officers, 802 F.2d
58, 60 (2d Cir. 1986) (district judges are afforded
“broad discretion” in determining whether to
appoint pro bono counsel for an indigent litigant in
a civil case). The docket reflects that on March 14, 2017,
the Clerk appointed Attorney Bruce Raymond to represent the
Plaintiff, however he declined the appointment. On March 22,
2017, the Clerk vacated the order appointing Attorney Raymond
as counsel. The Clerk has resumed her efforts to find another
attorney to represent the Plaintiff. Thus, as of now, the
Clerk has been unsuccessful in securing counsel to represent
the Plaintiff. Accordingly, unless and until such counsel is
secured, the Plaintiff must continue to litigate the case
Plaintiff has alternate means of securing legal assistance.
He may choose to enlist the assistance of Inmate Legal
Services, a legal assistance program provided by the State of
Connecticut through a contract with a private law firm. In
addition, the Plaintiff may also continue to seek private
representation. In some circumstances a prevailing party may
recover legal fees and a plaintiff may engage an attorney on
a contingency fee basis on which counsel is entitled to a
percentage of any recovery. Having advanced past the initial
review state, a resumption of efforts to retain counsel may
meet with greater success.
attorney agrees to represent the Plaintiff, the Clerk will
enter an order appointing the attorney as pro bono
counsel and the Plaintiff will receive notice of the order.
As the Plaintiff can rest assured that he will be informed by
the Clerk that he will be notified that an attorney has
agreed to represent him he need not file any further requests
with the Court to ascertain the status of the Clerk's
attempts to obtain counsel.
Motion to Seal Video Footage and Records [ECF No.
Plaintiff states that he asked the Defendants to preserve
video footage that supports the allegations in the complaint.
He now seeks a court order directing the Defendants to send
“all video footage to this Honorable Court so they can
be sealed and to avoid the defendants from tampering with
these videos.” The Plaintiff also seeks a court order
directing the Defendants to forward his prison medical
records to the Court to be placed under seal.
Plaintiff is advised to consult Inmate Legal Services and the
Federal Rules of Civil Procedure and the Federal Rules of
Evidence. These publications may be obtained from the U.S.
Government Publishing Office. Rule 26(b)(1) of the Federal
Rules of Civil Procedure provides that “[p]arties may
obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case. . . .” Each party has a duty
to preserve discoverable evidence once “the party has
notice that the evidence is relevant to litigation or when a
party should have known that the evidence may be relevant to
future litigation.” Fujitsu Ltd. v. Fed. Express
Corp., 247 F.3d 423, 436 (2d Cir. 2001); see
Kronisch v. United States, 150 F.3d 112, 126-27 (2d Cir.
1998) (“This obligation . . . arises when the party has
notice that the evidence is relevant to litigation-most
commonly when suit has already been filed, providing the
party responsible for the destruction with express notice,
but also on occasion in other circumstances, as for example
when a party should have known that the evidence may be
relevant to future litigation.”). Where one party fails
to produce documents, the other “may move for an order
compelling disclosure or discovery, ” so long as the
motion includes “a certification that the movant has in
good faith conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an effort
to obtain it without court action.” Fed.R.Civ.P.
Court assumes that parties will adhere to the law, including
the Federal Rules of Civil Procedure, unless facts are
presented suggesting that this assumption is not warranted.
The Plaintiff has provided no information to suggest that the
Defendants will not continue to preserve the relevant video
footage or the Plaintiff's medical records. Nor is there
any evidence that the Defendants have “tampered
with” videotapes or any other evidence that might be
relevant to this case, including his medical records.
extent that the Plaintiff intends the Motion to Seal to
function as a Motion to Compel, the Court finds he has not
complied with Fed.R.Civ.P. 37(a). Because there is no basis
to order the Defendants to send videotapes or the
Plaintiff's medical records to the Court or to place the
videotapes or medical records under seal, the motion is
Plaintiff also asks the Court to intervene and to retrieve
and preserve video footage from two dates in January 2017 and
one date in February 2017 that allegedly depict conduct that
occurred in the medical unit at Northern. On February 1,
2017, prison officials at Northern transferred the Plaintiff
to MacDougall-Walker to begin the second phase of the
administrative segregation program. The Plaintiff claims that
the video footage will show that Dr. Frayne forced him to
progress to Phase Two of the administrative segregation
program at MacDougall-Walker. The Plaintiff suggests that he
did not want to progress to Phase Two.
Plaintiff informs the Court that he is being treated by a
psychiatrist at MacDougall-Walker. The psychiatrist has met
with the Plaintiff and has prescribed medication to treat his