Feliciano v. DuBois, Civ. A. No. 93-11557-REK.

• Decision Date: 10 February 1994
• Docket Number: Civ. A. No. 93-11557-REK.
• Parties: Ricardo FELICIANO and Renaldo Santiago, Plaintiffs, v. Larry E. DUBOIS, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

846 F. Supp. 1033

Ricardo FELICIANO and Renaldo Santiago, Plaintiffs, v. Larry E. DUBOIS, et al., Defendants.

Civ. A. No. 93-11557-REK.

United States District Court, D. Massachusetts.

February 10, 1994.

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Ricardo Feliciano, pro se.

Renaldo Santiago, pro se.

Edward L. Toro, Mass. Dept. of Atty. Gen., Medicaid Fraud Control Unit, Boston, MA, for Scott Harshbarger.

Bruce R. Henry, Morrison, Mahoney & Miller, Boston, MA, for Emergency Medical Service Association, (EMSA).

John Egan, Posternak, Blankstein & Lund, Boston, MA, for James Pingeon.

MEMORANDUM AND ORDER

KEETON, District Judge.

This case is one of many now pending in this court that present a common pattern of jurisdictional, substantive, procedural, and pragmatic issues the court may, and perhaps must, consider in order to promote "just, speedy, and inexpensive determination," Fed. R.Civ.P. 1.

This Memorandum explains a provisional Order regarding these recurring issues, which I expect to apply in this and like cases before me in the absence of new developments in statutes, rules of procedure, and precedents bearing on these matters. A separate Memorandum and Order, to be issued in the near future, will address issues distinctive to this case that are raised by pending motions.

I. Factual Background

A. Allegations of a Clearly Identified Incident

The handwritten complaint in this case is 24-pages long. Submitted with it, under a cover sheet entitled "Exhibits # 1 through # 29 . . ." are 26 pages that do not include exhibits numbered 11, 21, 24, and 26.

Plaintiffs are two inmates in the custody of the Massachusetts Department of Correction, incarcerated at the Massachusetts Correctional Institution, Cedar Junction, in Walpole, Massachusetts ("M.C.I.-Cedar Junction"). Plaintiffs, proceeding pro se and in forma pauperis, bring this action against the Commissioner of Correction and 24 named defendants in their individual and official capacities. Plaintiffs purport also to sue other persons under designations "et al., counsels" and "et al., Defendants." Plaintiffs base their claims on allegations regarding one incident identified by date (an inmate fight at M.C.I.-Cedar Junction on July 4, 1992, Compl. ¶ 23, allegedly characterized by correctional officials as racially motivated), disciplinary proceedings against the plaintiffs because of their alleged participation in that fight, Compl. ¶¶ 23-31, and many less focused allegations regarding conditions of confinement in the Departmental Disciplinary Unit ("DDU") in which each of the plaintiffs has been confined after the incident of July 4, 1992. Compl. ¶¶ 32-39.

Plaintiffs allege that, as a result of the incident of July 4, 1992, M.C.I.-Cedar Junction was locked down for one week. Compl. Exh. 23. A disciplinary report was issued against both men for their alleged participation in the fight. Compl. ¶ 23. DDU hearings were held. Compl. ¶ 23. Santiago was represented in his disciplinary hearing by Attorney Stephen J. Dattis. Compl.Exh. 9. According to the disciplinary hearing report, Feliciano did not request representation. Compl.Exh. 8.

Both men pled not guilty. Both were found guilty of participating in the disturbance. Compl. ¶¶ 24, 27. On or about October 2, 1992, Feliciano was removed from the general population and placed in the DDU control unit for nine months. Compl. ¶ 27, Exh. 22. On or about October 9, 1992, Santiago was placed in the DDU control unit for one year. Compl. ¶ 27, Exh. 25.

The plaintiffs allege that they were deprived of their constitutional rights to due process of law during the DDU hearings, and freedom from cruel and unusual punishment and access to the courts while in DDU confinement. Compl. ¶¶ 30, 34.

The complaint alleges that

it was a known fact that Larry E. DuBois, Michael T. Maloney, Ronald T. Duval, Mark Powers, John Marshall, Eugene Marsolais, Medical Staffs of EMSA, Duane MacEachern, Ed Doolin, Thomas Garriga, Donna Phillips, Nancy Salters, Brian Gilligan, Glenn Gaspar, Officer Cahill, Robert Bailer, Chris Crown, Paul Walsh, and Phillip Harrington all ... knew and should have known that when the First Hispanic inmate was assaulted and battered by numerous of Black inmates in the Chow Hall that there would be a racial problem coming up ahead. In fact, ... two defendants as hearing officers knew but withheld that information from both plaintiffs Feliciano and Santiago. Neither did these officers consider the possibility of provocation or self defense during the DDU hearing.

Compl. ¶ 28.

B. General Allegations of Conditions of Confinement

In later paragraphs the complaint alleges that the two named plaintiffs and other inmates were subjected to conditions of confinement that plaintiffs seek to challenge. Among these paragraphs are allegations, not specific as to time or as to the inmates and defendants allegedly involved, about reduced opportunities for exercise, reduced opportunities to receive stamps from family and mail from other inmates, tampering with personal and legal mail, inadequate access to law library, legal materials, and assistance of other inmates more knowledgeable about legal matters, inadequate toiletry supplies, inadequate access to rehabilitative programs, inadequately prepared and inadequately nutritious meals, serving of food contaminated by insects, unsanitary shower facilities, water containing chemicals causing skin problems, smoking by correctional officers near inmates when inmates are denied smoking privileges, wearing of watches and earrings by correctional officers even though inmates were forced to send all such properties out of the institution, inadequate ventilation, inadequate light and windows, inadequate medical care, improper practices of anal and genital searches, deprivation of visiting privileges, inadequate heat, deprivation of personal and legal telephone calls, the practice by correctional officers of mental and psychological games as a form of punishment, inadequate training of staff and use of staff that are stressed out, deprivation of accumulated time credits, deprivation of inmate rights to practice religion, singling out inmates and hand-cuffing and manhandling inmates during cell searches, use by correctional officers of vulgar and disrespectful language, and invasions of privacy and physician-patient privilege by having a correctional officer present during inmate interviews with medical staff. Compl. ¶¶ 29-40.

C. Allegations Characterizing Plaintiffs' Claims

Following paragraph 40 of the complaint is a caption, "First Cause of Action." No other caption identifying an additional cause of action appears in the complaint. The remaining paragraphs of the complaint do, however, allege violations of plaintiffs' rights to protection under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments of the Constitution of the United States, Articles I, XII, and XIV of the Massachusetts Declaration of Rights, 42 U.S.C. § 1983, State and Federal Laws, State Regulations, and the federal RICO statute. These allegations are not tied to particular factual allegations of the numbered paragraphs of the complaint.

II. Action on a Request for Appointment of Counsel

Plaintiff Ricardo Feliciano moves for appointment of counsel. There is nothing in this motion to suggest that appointment of counsel is similarly being requested for plaintiff Renaldo Santiago. Even if such a request were made by Feliciano on behalf of Santiago, the court would have to disregard it because an individual who is not an attorney admitted to practice in this court cannot be allowed to represent any other person, any class, or other legal entity.

See, e.g., In re Victor Publishers, Inc., 545 F.2d 285, 286 (1st Cir.1976) (per curiam);

Eagle Associates v. Bank of Montreal, 926 F.2d 1305 (2d Cir.1991);

Covington v. Allsbrook, 636 F.2d 63, 64 (4th Cir.1980) ("Covington as a non-lawyer is not qualified to represent his fellow inmates").

In support of his motion plaintiff Feliciano makes the following assertions: (1) he is indigent and unable to afford to hire an attorney, (2) he has no access to a law library or legal assistance, (3) his claims have merit and are not frivolous, (4) the legal issues are complex, and (5) he is in no position to investigate his own case.

The appointment of counsel in a civil case for an indigent litigant is a matter that lies within the discretion of the court. 28 U.S.C. § 1915(d). "There is no absolute constitutional right to a free lawyer in a civil case." DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir.1991) (citations omitted).

The First Circuit has provided guidance for the exercise of discretion by a district court when faced with a motion for appointment of counsel:

an indigent litigant must demonstrate exceptional circumstances in his or her case to justify the appointment of counsel. Whether exceptional circumstances exist requires an evaluation of the type and complexity of each case and the abilities of the individual bringing it.... Some factors which courts have found to bear on the particular case include the indigent's ability to conduct whatever factual investigation is necessary to support his or her claim, the complexity of the legal and factual issues involved, and the capability of the indigent litigant to present the case.

Cookish v. Cunningham, 787 F.2d 1, 2-3 (1st Cir.1986) (citations omitted).

I infer from Feliciano's successful application to proceed in forma pauperis that he is unable to afford to hire an attorney. I conclude, however, that the record before me does not support a finding that this case presents, at this stage of pretrial proceedings, exceptional circumstances warranting the appointment of counsel.

First, the court must take account of the fact that the court has no authority to commit any financial resources to compensation of appointed counsel in cases within the...