United States District Court, D. Vermont
MICHAEL J. LEWIS, Plaintiff,
LISA M. MENARD, DAVID TURNER, KOREY STONE, JOSHUA RUTHERFORD, JOEL MACHADO, JANE DOES, and JOHN DOES, Defendants.
OPINION AND ORDER ADOPTING IN PART MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION, GRANTING
DEFENDANTS' MOTION TO DISMISS, GRANTING PLAINTIFF LEA VE
TO AMEND, AND DENYING WITHOUT PREJUDICE PLAINTIFF'S
MOTION FOR APPOINTMENT OF PRO BONO COUNSEL (DOCS. 12 &
Christina Reiss, District Judge United States District Court
matter came before the court for a review of the Magistrate
Judge's February 26, 2019 Report and Recommendation
("R & R") (Doc. 28), in which he recommended
the court dismiss the Complaint filed by Plaintiff Michael
Lewis, an inmate in the custody of the Vermont Department of
Corrections ("VT DOC"), against Defendants Lisa M.
Menard, David Turner, Korey Stone, Joshua Rutherford, Joel
Machado, and Jane and John Does (collectively,
"Defendants") based on alleged deprivations of his
constitutional rights pursuant to 42 U.S.C. § 1983 while
he was detained at a Pennsylvania Department of Corrections
("PA DOC") detention center from approximately June
of 2017 until October 27, 2017. He seeks permanent injunctive
relief preventing Defendants from transferring him to an
out-of-state detention facility and compensatory and punitive
damages against Defendants in both their individual and
official capacities. In their motion to dismiss, Defendants
assert that Plaintiffs request for an injunction is moot as
he is no longer incarcerated in Pennsylvania and will not be
in the future because Defendants have terminated their
contract with PA DOC.
is self-represented. Defendant is represented by Vermont
Assistant Attorney General Robert M. LaRose.
district judge must make a de novo determination of those
portions of a magistrate judge's report and
recommendation to which an objection is made. Fed.R.Civ.P.
72(b); 28 U.S.C. § 636(b)(1); Cullen v. United
States, 194 F.3d 401, 405 (2d Cir. 1999). The district
judge may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28
U.S.C. § 636(b)(1); accord Cullen, 194 F.3d at 405. A
district judge, however, is not required to review the
factual or legal conclusions of the magistrate judge as to
those portions of a report and recommendation to which no
objections are addressed. Thomas v. Am, 474 U.S.
72(b) requires a party to provide "specific written
objections to the proposed findings and
recommendations." Fed.R.Civ.P. 72(b)(2); see Mario
v. P & CMkts., Inc., 313 F.3d 758, 766 (2d Cir.
2002) (concluding a "bare statement, devoid of any
reference to specific findings or recommendations to which he
objected and why, and unsupported by legal authority . . .
does not constitute an adequate objection under . ..
Fed.R.Civ.P. 72(b)"). In his objection to the R & R,
Plaintiff concedes that he "do[es] not wish to profceed]
with suing, or p[u]rsuing criminal charges against, as a
matter of law[, ] Joel Machado, and any [J]ane [D]oe, or
[J]ohn [D]oes, Joshua Rutherford[.]" (Doc. 29 at 4.)
Accordingly, Defendants' motion to dismiss those
Defendants is hereby GRANTED. In this case, Plaintiffs
objection provides no other guidance as to why he contends
the R & R is in error.
Plaintiff did not raise specific objections to any of the
Magistrate Judge's factual or legal conclusions, the
court hereby ADOPTS the Magistrate Judge's R & R,
GRANTS Defendants' motion to dismiss, and DISMISSES
Plaintiff s Complaint.
Magistrate Judge further recommended the court refrain from
granting Plaintiff leave to amend his Complaint because
Plaintiff had not sought leave to amend prior to the R &
R and because the Magistrate Judge concluded amendment would
be futile based on the pleadings before the court at that
time. Although the Magistrate Judge's points are well
taken, Plaintiff now requests leave to amend his Complaint.
The Second Circuit has held that district courts should not
dismiss the claim of a self-represented party without
granting leave to amend at least once "when a liberal
reading of the complaint gives any indication that a valid
claim might be stated." Thompson v. Carter, 284
F.3d 411, 416 (2d Cir. 2002); see also Fed. R Civ. P.
15(a)(2) ("the court should freely give leave [to amend]
when justice so requires").
is hereby GRANTED thirty (30) days from the date of this
Order to file an Amended Complaint. Any amended filing shall
be entitled "Amended Complaint" and shall consist
of numbered paragraphs containing short and plain factual
allegations, a short and plain statement of each legal claim
Plaintiff asserts, and a clear and concise statement of the
relief requested. See Fed. R Civ. P. 8(a) & 9 (setting
forth pleading requirements). In the Amended Complaint,
Plaintiff must allege all claims and name all defendants that
Plaintiff intends to include because the Amended Complaint
will take the place of the original Complaint in all
respects. Failure to file an Amended Complaint in the time
period provided shall result in the dismissal of all claims
also requests the court appoint pro bono counsel to assist
him with his Amended Complaint. "A party has no
constitutionally guaranteed right to the assistance of
counsel in a civil case." Leftridge v. Conn. State
Trooper Officer # 1283, 640 F.3d 62, 68 (2d Cir. 2011).
A party granted in forma pauperis status may request
appointment of an attorney if the party is unable to afford
one. See 28 U.S.C. § 1915(e)(1). The courts are granted
"[b]road discretion" in making the decision to
request that an attorney undertake pro bono representation.
See Hodge v. Police Officers, 802 F.2d 58, 60 (2d
threshold requirement, the court must determine whether an
indigent party's claim "is likely one of
substance." Carmona v. U.S. Bureau of Prisons,
243 F.3d 629, 632 (2d Cir. 2001) (citing Hodge, 802 F.2d at
61). "[E]ven though a claim may not be characterized as
frivolous, counsel should not be appointed in a case where
the merits of the . .. claim are thin and [the plaintiffs]
chances of prevailing are therefore poor." Id.
(denying counsel where petitioner's appeal was not
frivolous but nevertheless appeared to have little merit).
Once satisfied as to the substance of a plaintiff s claims, a
court should consider the following:
the indigent's ability to investigate the crucial facts,
whether conflicting evidence implicating the need for
cross-examination will be the major proof presented to the
fact finder, the indigent's ability to present the case,
the complexity of the legal issues and any special reason . .
. why appointment of counsel would be more likely to lead to
a just determination.
Hodge, 802 F.2d at 61-62.
the court granted Plaintiffs motion to proceed in forma
pauperis and he is thus presumably unable to afford counsel.
However, because Defendants' motion to dismiss the
Complaint has been granted, at this time Plaintiff has not
demonstrated his claims are "likely one[s] of
substance." Accordingly, ...