Herbert v. George

Background

Jeremiah Folsom Herbert, who is incarcerated at Attica Correctional Facility, brought this action under 42 U.S.C. § 1983 seeking damages. He alleges that the events underlying his claims occurred while he was incarcerated at Sing Sing Correctional Facility. The named defendants are Correctional Sergeant J. George, Correctional Sergeant Johnson, Correctional Officer M. Salas, Correctional Sergeant Ridley, and Correctional Officer Camron. Herbert is proceeding without a lawyer.

In an earlier order dated March 8, 2024, the court granted Herbert permission to proceed without prepaying filing fees. The court explained that prisoners must still pay the full filing fee over time under the applicable statute.

Service of the Defendants

Because Herbert was allowed to proceed without prepaying fees, the court directed the United States Marshals Service to serve the defendants. The Clerk of Court was instructed to issue a summons for each defendant, complete a United States Marshals Service Process Receipt and Return form for each defendant, and provide the Marshals Service with the documents needed to serve the summonses and complaint.

The court stated that if the summonses and complaint are not served within 90 days after the summonses are issued, Herbert should request more time for service. The court also stated that Herbert must notify it in writing if his address changes and that the action may be dismissed if he fails to do so.

Discovery

The court determined that Local Civil Rule 33.2 applies. That rule requires defendants in certain prisoner cases to respond to specified court-ordered discovery requests, including interrogatories and requests for production of documents. The defendants must serve their responses within 120 days after service and must quote each request verbatim in those responses.

Motion for Counsel

Herbert moved for appointment of counsel. The court explained that it considers factors including the apparent merits of the case, the litigant’s efforts to obtain a lawyer, and the litigant’s ability to gather facts and present the case without assistance. The court emphasized that the merits receive the most attention. It also explained that, under the applicable statute, the court cannot appoint a lawyer to represent an indigent litigant but may request that a lawyer volunteer.

Because the case was too early for the court to assess the merits of Herbert’s claims, the court denied the motion for appointment of counsel without prejudice to Herbert’s filing a later application asking the court to request volunteer, or pro bono, counsel. The Clerk was directed to terminate the motion listed at Doc. 5.

Disposition

The court directed the Clerk to mail Herbert a copy of the order and an information package, issue summonses, complete the service forms, and deliver the necessary documents to the Marshals Service. The court further directed the defendants to comply with Local Civil Rule 33.2 within 120 days after service. The court denied Herbert’s motion for appointment of counsel without prejudice. It also certified that an appeal from the order would not be taken in good faith and denied permission to proceed without prepaying fees for purposes of an appeal.