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Milner v. Black

United States District Court, D. Connecticut

May 30, 2017

SHAWN MILNER, Plaintiff,
ALLISON BLACK, et al., Defendants.


          Stefan R. Underhill, United States District Judge

         Plaintiff Shawn Milner (“Milner”), currently incarcerated at Northern Correctional Institution in Somers, Connecticut, filed this case pro se under 42 U.S.C. § 1983 alleging that the defendants were deliberately indifferent to his serious medical needs. This ruling addresses several motions filed by Milner: two motions for appointment of counsel (docs. 19 and 25), a motion for settlement conference (doc. 21), four motions to compel (docs. 24, 27, 31, and 32), a motion for pretrial conference (doc. 26), a motion for consent decree (doc. 28), and two motions for entry of default (docs. 29 and 33).

         I. Motions for Appointment of Counsel (docs. 19 and 25)

         Milner has filed two motions seeking appointment of pro bono counsel in this action pursuant to 28 U.S.C. § 1915. The Second Circuit repeatedly has cautioned the district courts against the routine appointment of counsel. See, e.g., Ferrelli v. River Manor Health Care Center, 323 F.3d 196, 204 (2d Cir. 2003); Hendricks v. Coughlin, 114 F.3d 390, 393 (2d Cir. 1997).

         The Second Circuit also has made clear that before an appointment is even considered, the indigent person must demonstrate that he is “unable to obtain counsel.” Saviano v. Local 32B-32J, 75 F. App'x 58, 59 (2d Cir. 2003) (quoting Cooper v. A. Sargenti Co., 877 F.2d 170, 173 (2d Cir. 1989)). In his first motion for appointment of counsel, Milner states that he contacted three attorneys, Sidney Schulman, Norman Pattis, and Aaron Romano, but received no responses for over thirty days. His supplemental motion for appointment of counsel does not indicate that he contacted any other attorneys, nor does Milner indicate in either motion whether he contacted Inmates' Legal Assistance Program, the organization under contract with the Department of Correction to provide legal assistance to Connecticut inmates. Because Milner has not sought legal assistance from Inmates' Legal Assistance Program, the court cannot determine whether he is able to obtain legal assistance on his own.

         In addition, the Second Circuit has reiterated the importance of requiring an indigent plaintiff to “pass the test of likely merit.” Cooper, 877 F.2d at 173-74. The court explained that “even where the claim is not frivolous, counsel is often unwarranted where the indigent's chances of success are extremely slim.” Id. at 171 (quotation marks and citation omitted). The current record, consisting of the Complaint and Answer, is insufficient to determine whether Milner's claims possess likely merit. Thus, appointment of counsel is premature.

         Milner's motions for appointment of counsel are therefore denied without prejudice to refiling at a later stage of litigation. Any renewed motion shall include additional information, such as a copy of a letter from Inmates' Legal Assistance Program, about why assistance was declined.

         II. Motions for Settlement and Pretrial Conferences (docs. 21 and 26)

         Milner has filed a motion asking the court to schedule a settlement conference in this case. When asked about interest in a settlement conference, defendants' counsel informed the court's pro se law clerk that, upon receipt of Milner's motion, he sent Milner a letter inquiring about the “reasonable proposal” mentioned in the motion but received no response. Milner's motion is thus denied without prejudice. If Milner is interested in settlement, he should respond to counsel's letter. If settlement seems possible, counsel is directed to inform the court so a settlement conference can be scheduled.

         Milner also has filed a motion for pretrial conference pursuant to Rule 16 of the Federal Rules of Civil Procedure. That motion is granted. Following the issuance of this Order, the court will contact the parties to arrange a telephonic Rule 16 conference in which to discuss the pleadings, deadlines, and possibilities for settlement in this case.

         III. Motions to Compel (docs. 24, 27, 31, and 32)

         Milner has filed four motions to compel. In the first motion, he states that he requested copies of the UConn/CMHC Policy and Procedures Manual but that the defendants want to charge him for the copy. He attaches to his motion a copy of a letter indicating that he requested the document under the Freedom of Information Act, not through the discovery process. That motion (doc. 24) is granted in part: if Milner specifies which portions of that Manual he would like to review, the defendants should provide him with that portion or should timely present their objection to the court.

         In the second motion to compel, Milner states that he requested materials over thirty days ago and has not received them. He does not attach a copy of his production request or describe the documents requested. In response to the first two motions to compel, the defendants state that they did not receive any discovery requests and note that if the requested document is the one referenced in the prior motion, the request for that document was not served on them through the discovery process in this case. See (doc. 30). Absent identification of the documents requested and evidence that a request for those documents was mailed to defendants' counsel, the second motion to compel (doc. 27) is denied without prejudice.

         The third motion to compel is an incomplete copy of the fourth motion. The exhibits were not included with the third motion. Accordingly, the third motion to compel (doc. 31) is denied ...

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