United States District Court, D. Connecticut
RULING AND ORDER
R. Underhill, United States District Judge
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).
Motions for Appointment of Counsel (docs. 19 and 25)
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).
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.
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
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.
Motions for Settlement and Pretrial Conferences (docs. 21
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.
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.
Motions to Compel (docs. 24, 27, 31, and 32)
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.
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
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