United States District Court, D. Massachusetts
ORDER ON PENDING MOTONS
PAGE KELLEY UNITED STATES MAGISTRATE JUDGE
reasons set forth below, the (1) plaintiff's motions
(Docket Nos. 52, 63) for counsel are denied without
prejudice; (2) plaintiff's motions for leave to file an
amended complaint (Docket Nos. 51, 62) are allowed to the
extent that plaintiff must identify one operative complaint
(either of the proposed amended complaints or a new amended
complaint); (3) the defendants' motion (Docket No. 68)
for extension of time to answer the original complaint is
allowed and defendants shall respond after plaintiff
identifies the operative amended complaint; and (4)
plaintiff's motion (Docket No. 64) to compel process is
granted in part and denied in part.
above-captioned action was opened on May 25, 2018, upon
receipt of a pleading filed by Richard McFee, a prisoner at
FMC Devens, seeking appointment of counsel and injunctive
relief stating that various correctional staff and medical
providers failed to treat plaintiff's serious medical
issues. (Docket No. 1). McFee alleges that on September 26,
2017, while in federal custody in Minnesota, he was the
victim of a serious assault. McFee alleges that he was denied
medical treatment in Minnesota and, when transferred to FMC
Devens a little more than two months later, continued to be
denied adequate medical treatment to address the injuries
that he suffered during the assault. McFee also complains of
inadequate medical care concerning his chronic medical
conditions, including Crohn's disease. By Order dated
June 7, 2018, the Court directed McFee to file a complaint.
(Docket No. 4).
21, 2018, McFee filed his complaint. (Docket No. 6). After
the complaint was filed, summonses issued for service of the
complaint on defendants Tidwell, Yeh, Vondyes,  Wagner, Woods,
and Lund (Docket Nos. 11, 20). After several insufficient
attempts to serve the complaint on the defendants, the Clerk
again delivered to the United States Marshals Service the
documents for service. See Oct. 18, 2018 Electronic
Order (Docket No. 41).
pending before the Court are defendants'
motion (Docket No. 68) for extension of time to
answer; plaintiff's motions Docket Nos. 51, 62) for leave
to file amended complaints; plaintiff's motions (Docket
Nos. 52, 63) for appointment of counsel; plaintiff's
motion (Docket No. 64) to compel process; plaintiff's
motion (Docket No. 68) to extend time to serve; and
plaintiff's motions (Docket Nos. 42, 68) for Preliminary
Injunction and/or Temporary Restraining Order.
Plaintiff's Motions to Appoint Counsel
the Court “may request an attorney to represent any
person unable to afford counsel, ” 28 U.S.C. §
1915(e)(1), a civil plaintiff lacks a constitutional right to
free counsel, see DesRosiers v. Moran, 949 F.2d 15,
23 (1st Cir. 1991). The Court does not have the funds to pay
attorneys to represent plaintiffs in civil cases, and it is
difficult to find attorneys who will accept appointment as
pro bono counsel. To qualify for this scarce resource, a
party must be indigent and exceptional circumstances must
exist such that the denial of counsel will result in
fundamental unfairness impinging on the party's due
process rights. See DesRosiers, 949 F.2d at 23. To
determine whether there are exceptional circumstances
sufficient to warrant the appointment of counsel, a court
must examine the total situation, focusing on the merits of
the case, the complexity of the legal issues, and the
litigant's ability to represent himself. See id.
at 24. At this early stage of the proceedings, the Court
cannot determine whether exceptional circumstances exist that
would justify appointment of counsel.
Plaintiff's Motions for Leave to file an Amended
filing the original complaint, plaintiff subsequently filed
two motions for leave to amend. The first motion for leave to
amend was filed on November 5, 2018. (Docket No. 51). The
second motion for leave to amend was filed on December 11,
2018. (Docket No. 62). Both proposed amended complaints seek
to drop defendant Woods as a defendant, and the second
proposed amended complaint seeks to add two new defendants
(J. Berkowitz and T. O'Connor). (Docket Nos. 51-1, 62-1).
Although both proposed amended complaints include similar
allegations, it appears that the second proposed amended adds
additional factual allegations without repeating factual
allegations from either the original or proposed first
amended complaint. See Docket Nos. 51-1, 62-1).
amended complaint normally supersedes the original pleading.
See ConnectU LLC v. Zuckerberg, 522 F.3d 82, 91 (1st
Cir. 2008). Here, however, plaintiff's second amended
complaint does not repeat allegations either from the
original complaint and/or the proposed first amended
plaintiff may amend his pleadings once as a matter of course,
it is unclear which of the proposed amended complaints
plaintiff intends to be the operative complaint in this
action. Therefore, plaintiff will be granted additional time
either to (1) inform the court which proposed complaint
should be the operative complaint or (2) file a new amended
complaint. If plaintiff choses to file a new amended
complaint, he should repeat in such amended complaint any
allegations from the earlier pleadings that he wishes to be
included in the amended complaint. Plaintiff is reminded that
in addition to the pleading requirements of Fed.R.Civ.P.
8(a), an amended complaint should comply with other
provisions of the Federal Rules of Civil Procedure. Under
Fed.R.Civ.P. 10(a), "[t]he title of the complaint must
name all the parties," and the claims in a complaint
must be set forth "in numbered paragraphs, each limited
as far as practicable to a single set of circumstances."
Defendants' Motion ...