McKinney v. New Haven Police Dep't

          RULING ON PENDING MOTIONS

          Janet C. Hall United States District Judge

         The plaintiff, William J. McKinney (“McKinney”), currently is incarcerated at Bridgeport Correctional Center in Bridgeport, Connecticut, has filed several miscellaneous motions in this case.

         I. MOTIONS FOR ENTRY OF DEFAULT

         McKinney has filed two Motions for Entry of Default (Doc. Nos. 57 & 59). The first Motion (Doc. No. 57) seeks entry of default against all defendants, the second Motion (Doc. No. 59) against defendant Matthew Rau. At the time McKinney filed these Motions, there were three defendants remaining in this case, Officer John Moore, EMT Devon Bicumore and EMT Matthew Rau. Defendant Moore appeared and filed an Answer in April 2018 (Docs. No. 32, 35), prior to either Motion being filed. On November 6, 2018, the court dismissed the claims against defendants Bicumore and Rau. Because the only remaining defendant is not in default, the Motions for Default Entry (Doc Nos. 57 & 59) are denied.

         II. MOTION FOR APPOINTMENT OF COUNSEL

         McKinney also seeks appointment of pro bono counsel, 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 Fed.Appx. 58, 59 (2d Cir. 2003) (quoting Cooper v. A. Sargenti Co., 877 F.2d 170, 173 (2d Cir. 1989)). McKinney describes his unsuccessful efforts to obtain representation in the motion. In light of these efforts, the court will assume that McKinney cannot obtain legal assistance on his own.

         In addition, before appointing counsel, the District Court must determine that McKinney's claims possess likely merit. See Cooper v. A. Sargenti Co., 877 F.2d 170, 173-74 (2d Cir. 1989) (cautioning district courts against “routine appointment of counsel” and reiterating importance of requiring indigent litigant to “pass the test of likely merit”). A nonfrivolous claim may not possess likely merit if the litigant's “chances of success are extremely slim.” Id. at 171.

         The current record consists of the Complaint and defendant Moore's Answer. In addition, McKinney has filed a Motion to Amend his Complaint to add more defendants (Doc. No. 72). At this time, the court cannot assess the likely merit of McKinney's claims. Accordingly, appointment of counsel is not warranted at this time. McKinney's Motion to Appoint Counsel (Doc. No. 58) is denied without prejudice to refiling at a later stage of litigation.

         III. MOTION TO COMPEL

         On October 4, 2018, the court received a letter from McKinney addressed to the chambers of the Honorable Sarah A.L. Merriam, United States Magistrate Judge. The letter has been docketed as a Motion to Compel and a Motion to Amend (Doc. No. 60).

         McKinney states that Judge Merriam had instructed counsel for defendant Moore to permit McKinney to view video recordings of the incident scene and of McKinney's interview by police officers, but he has not been permitted to do so. McKinney seeks court assistance in viewing the recordings. In his recent motion to amend, McKinney describes information he obtained from viewing the recordings. As he has now seen the recordings, this Motion/request is denied as moot.

         McKinney seeks preservation and inspection of the “rock in a sock weapon.” Before filing a motion to compel, a party must confer, or attempt to confer, with the opposing party to resolve the issue without court action. Fed.R.Civ.P. 37(a)(1). Because it is not clear whether McKinney has sought to inspection the item through the discovery process, let alone attempted to resolve any issue with defendant's counsel, his request is denied as premature.

         Finally, McKinney seeks permission to file ten additional interrogatories. This request is granted.

         IV. MOTION ...