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Dismuke v. Long

United States District Court, D. Connecticut

August 10, 2017

LASHAWN W. DISMUKE, Plaintiff,
v.
C/S LONG, ET AL., Defendants.

          RULING ON PENDING MOTIONS

          Michael P. Shea, United States District Judge.

         The plaintiff, LaShawn Dismuke, incarcerated and pro se, initiated this action by filing a complaint pursuant to 42 U.S.C. § 1983 against Commissioner Scott Semple, Counselor Supervisor Long, Captain Colon, Warden Maldinado[1] and Kevin Roy. On December 20, 2016, the Court dismissed the claims for monetary damages against all defendants in their official capacities pursuant to 28 U.S.C. § 1915A(b)(2), the First Amendment and Fifth Amendment claims against all defendants in both capacities pursuant to 28 U.S.C. § 1915A(b)(1), and the Fourteenth Amendment and Eighth Amendment claims against defendants Roy and Semple in both capacities pursuant to 28 U.S.C. § 1915A(b)(1). The case proceeded as to the Fourteenth and Eighth Amendment claims against defendants Long, Colon, and Maldinado in their individual capacities with respect to damages and their official capacities with respect to declaratory and injunctive relief.

         The following motions are pending before the Court: (i) Plaintiff's motion for appointment of counsel (ECF No. 16), (ii) Plaintiff's motion for extension of time to conduct discovery (ECF No. 18), (iii) Defendants' second motion for extension of time to respond to the complaint (ECF No. 20) and the supplemental statement in support of the second motion for extension of time (ECF No. 23), (iv) Plaintiff's “motion for extension nunc pro tunc” (ECF No. 21), (v) Plaintiff's motion for discovery, disclosure, and inspection (ECF No. 22), (vi) Defendants' motion to dismiss, and (vii) Plaintiff's motion to amend the complaint (ECF No. 27). As explained below, the Court hereby GRANTS the [20] second motion for extension of time and DENIES the remaining motions.

         I. Defendants' Motions for Extension of Time to Respond to Complaint [ECF Nos. 20, 23]

         In their second motion for extension of time (ECF No. 20) to respond to the complaint, defendants seek an extension of time until April 5, 2017, to file a response to the complaint. Defendants also filed, as a motion, a “Supplemental Statement” in support of the second motion for extension of time. (ECF No. 23.) That statement indicates that on March 21, 2017, defense counsel conferred with the Plaintiff regarding the Defendants' second motion for extension of time, and the Plaintiff consented to the motion. (ECF No. 23 at 1.) The (ECF No. 20) second motion for extension of time is granted absent objection and for good cause shown. Because the (ECF No. 23) supplemental statement in support of the second motion for extension of time seeks no relief, it was improperly filed as a motion for extension of time. Accordingly, it is denied.

         II. Plaintiff's Motion for Appointment of Counsel [ECF No. 16]

         The Plaintiff as a civil litigant does not have a constitutional right to the appointment of counsel. See 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 (D. Conn.), Castellano v. Murphy, et. al., 10-cv-794 (D. Conn.). litigant in a civil case); 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford counsel.”) (emphasis added). The Second Circuit has made clear that before an appointment is even considered in a civil action, the indigent person must demonstrate that he or she is unable to obtain counsel or legal assistance. See Hodge, 802 F.2d at 61.

         The Plaintiff claims that he is not an attorney and cannot afford the services of an attorney. (ECF No. 16 at 1.) He contends that as a non-lawyer, he cannot meet deadlines or effectively litigate this case. (Id.) He has made no attempts to secure the assistance of counsel prior to filing this motion. Furthermore, the Plaintiff does not indicate that he made any attempts to contact the Inmate Legal Aid Program[2] with regard to any questions he might have about litigating this case, including how to conduct discovery. Because there is a possibility that the Plaintiff may be able to secure legal assistance or representation independently, the motion for appointment of counsel is denied by the Court at this time. See Hodge, 802 F.2d at 61.

         III. Plaintiff's Motion for Extension of Time to Conduct Discovery [ECF No. 18]

         The Plaintiff seeks an extension of time to begin conducting discovery until the Court rules on his motion for appointment of counsel. He claims that he is unable to “facilitate proper discovery or to cite to legal precedents(s), due in part, to Osborn Correctional Institution not providing access to law library materials.” (ECF No. 18 at 1-2.) The Court has now ruled on the Plaintiff's motion for appointment of counsel and has noted that the Plaintiff may seek assistance from the Inmate Legal Aid Program to the extent that he has questions regarding how to conduct discovery.

         The Court liberally construes the motion as a request to extend the time period to conduct discovery. The motion is granted. The discovery deadline is extended for an additional ninety days from the date of this order, i.e., until November 8, 2017.

         IV. Plaintiff's “Motion for Extension Nunc Pro Tunc” [ECF No. 21]

         The Plaintiff states that on January 16, 2017, he submitted a Freedom of Information Act (“FOIA”) request to the Department of Correction and a FOIA request to the Department of Public Health.[3] (ECF No. 21 at 1.) On January 19, 2017, the Department of Correction's FOIA liaison responded to the Plaintiff's requests and indicated that he would be hearing from the FOIA office in the near future. (ECF No. 21-1 at 3.) The Plaintiff seeks an extension of time in order to receive the materials he requested pursuant to his FOIA requests. (ECF No. 21 at 2.) The process of obtaining documents through FOIA requests is independent of the discovery process and this litigation. In any event, in the prior section of this ruling, the Court is extending the discovery period to November 8, 2017. Therefore, this motion is denied.

         V. Plaintiff's Motion for Discovery, Disclosure and ...


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