Brennan v. Merrimack

• Court: District Court, D. New Hampshire
• Decided: April 30, 1993
• Docket: CV-92-280-B
• Status: Published

Opinion

Brennan v . Merrimack CV-92-280-B 04/30/93

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William J. Brennan

v. Civil N o . 91-280B The Town of Merrimack, New Hampshire

O R D E R

Pro se plaintiff William Brennan filed this 42 U.S.C. § 1983

action against defendant the Town of Merrimack, New Hampshire

("the Town"), alleging that the Town refused to hire him as a

permanent firefighter because of his prior arrest record and his

suit against the City of New York, New York, even though he

claims that he was the most qualified applicant for the position. Two motions are currently pending: (1) Brennan's motion for the

appointment of counsel (Document n o . 2 7 ) , and (2) the Town's

motion for summary judgment (Document n o . 2 4 ) . For reasons which

follow, I deny Brennan's request for the appointment of counsel

and grant the Town's motion for summary judgment.

I. Appointment of Counsel

It is well-settled that there is no constitutional right to

appointed counsel in civil cases. Cookish v . Cunnigham, 787 F.2d 1 , 2 (1st Cir. 1986) (citing Andrews v . Bechtel Power Corp. &

Local 276, Plumbers & Pipefitters Union, 780 F.2d 1 2 4 , 137 (1st

Cir. 1985), cert. denied, 476 U.S. 1172 (1986)). Section 1915(d)

of Title 2 8 , however, provides that district courts "may request

an attorney to represent such person unable to employ counsel . .

. ." (emphasis added). The Court of Appeals for the First

Circuit has concluded that indigent civil litigants must

demonstrate "exceptional circumstances" before a district court

may exercise its discretion and appoint counsel. See id.

"Whether exceptional circumstances exist requires an evaluation

of the type and complexity of each case, and the ability of the

individual bringing it." Id.

Brennan first moved for appointment of counsel after the

magistrate judge issued a Report recommending that Brennan's

complaint be dismissed for failure to state a claim. Although

this court (Devine, C.J.) found the complaint sufficient at that

stage to withstand dismissal, it denied Brennan's motion, stating

that "this case is not of the exceptional category" which

warrants the appointment of counsel. I agree. C f . Bemis v .

Kelley, 857 F.2d 1 4 , 16 (1st Cir. 1988) (district court properly

denied indigent civil litigant's request for appointed counsel in

section 1983 case because, among other things, he "demonstrated

2 through is filings . . . a familiarity with, and workable

knowledge o f , the legal process and its rules," and his

"allegations were clearly stated and demonstrated an

understanding of the issues"). Accordingly, Brennan's present

motion for appointed counsel (Document n o . 27) is denied.

II. Summary Judgment

On November 6, 1992, the Town filed a motion for summary

judgment accompanied by a supporting affidavit and a memorandum

of law. See Document n o . 2 4 . Three weeks later, on November 3 0 ,

1992, Brennan was given a thirty day extension to respond to the

Town's motion, see Document n o . 2 6 , but he failed to file any

response.

Rule 56(e) of the Federal Rules of Civil Procedure provides

that "if the adverse party does not [file an opposition], summary

judgment, if appropriate, shall be entered against the adverse

party." Fed. R. Civ. P. 56(e) (emphasis added). The First

Circuit has made it clear that the failure of a non-moving party to file timely opposition to a motion for summary judgment, does not, in itself, justify entry of summary judgment against that party, but that "the district court [is] still obliged to consider the motion on its merits, in light of the record as constituted, in order to determine whether judgment would be legally appropriate."

3 Mullen v . S t . Paul & Fire Ins. Co., 972 F.2d 446, 452 (1st Cir.

1992) (quoting Kelly v . United States, 924 F.2d 355, 358 (1st

Cir. 1991)); accord Lopez v . Corporacion Azucarera de Puerto

Rico, 938 F.2d 1510, 1516 (1st Cir. 1991). However, the opposing

party, by failing to submit a written objection and memorandum as

required by Local Rule 11(d), 1 waives the right to controvert the

facts asserted by the moving party. Jaroma v . Massey, 873 F.2d

1 7 , 21 (1st Cir. 1989) (construing Rule 11 of the Rules of the

United States District Court for the District of New Hampshire).

The district court will then accept as true all material facts set forth by the moving party with appropriate record support. If those facts entitle the moving party to judgment as a matter of law, summary judgment will be granted.

Id.

After reviewing the affidavit and memorandum of law filed by

the Town in support of its motion for summary judgment, I conclude that the Town has met its burden of demonstrating "the

absence of any material factual issue as a matter of law." See

id. The affidavit of James C . Pitts, the Administrative Officer

1 Local Rule 11(d) states that, unless the opposing party files a written objection and memorandum to the motion, "he shall be deemed to have waived objection, and the court may act on the motion."

4 for the Town, asserts the following: (1) Brennan did not receive the highest score on the written exam; h e , in fact, received the third highest score among all applicants; (2) the candidates selected were first and second as a result of the oral board, written exam, staff evaluation, education, state certifi- cation, experience on fire departments, and background checks;

(3) the decision not to hire Brennan was not based upon his prior arrest record; the town, in fact, had previously learned of his record, and, despite this knowledge, had hired him as a part-time custodian; (4) Brennan's candidacy for the position of full- time firefighter was adversely affected by the Town's knowledge of his prior unsatis- factory employment experience with the Town; Brennan resigned from his position as part- time custodian for the Town after being accused by his supervisor of forging his time sheets; he was disciplined by the Deputy Chief of the Merrimack Fire Department for a driving violation while responding to a fire call as a volunteer fireman for the Town; and he was the subject of complaints in his position as head lifeguard for the Town; and

(5) the Town does not have an "ordinance, policy, custom or procedure that discriminates against job applicants that have previous criminal arrests."

See Pitts Aff. ¶¶ 3-20. These facts, taken as uncontroverted,

establish that plaintiff has no claim that the Town's refusal to

hire him deprived him of his right to due process. Petru v .

Berwyn, 872 F.2d 1359, 1363 (7th Cir. 1989). Similarly, the

5 uncontroverted facts establish that plaintiff cannot prove that

the Town's refusal to hire him violated his right to equal

protection because the Town's decision to hire someone in his

place was not based on plaintiff's status as a member of a class

of persons who had previously been arrested. Compare Furst v .

New York City Trust Authority, 631 F. Supp. 1331, 1336 (E.D. N.Y.

1986). Accordingly, I grant defendant's motion for summary

judgment (document n o . 2 4 ) .

SO ORDERED.

Paul Barbadoro United States District Judge April 3 0 , 1993

cc: Laurence E . Kelly, Esq. Craig L . Staples, Esq. William J. Brennan