Norris v. Moroney

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

KEVIN NORRIS, *

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Plaintiff, *

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v. * Civil Action 22-cv-10660-IT

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GLORIANN MORONEY, et al., *

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Defendants. *

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MEMORANDUM & ORDER

August 18, 2022

TALWANI, D.J.

Pro se Plaintiff Kevin Norris, a state prisoner confined at the Massachusetts Treatment

Center, has filed a Complaint [Doc. No. 1] against individual members of the Massachusetts

Parole Board (“Board”), its attorneys, and various parole officers. On August 15, 2022, Norris

filed a Motion for Appointment of Counsel [Doc. No. 14], an Emergency Motion for Preliminary

Injunction [Doc. No. 15], a Motion for an Evidentiary Hearing and Court Order [Doc. No. 18],

and supporting papers. The court addresses these motions in reverse order.

I. Motion for an Evidentiary Hearing and Court Order [Doc. No. 18]

Norris seeks an evidentiary hearing and court order to resolve a dispute concerning

service of the complaint and waiver of summons. As explained here, without disputing Norris’s

account of the events at issue, there has been neither proper service nor an effective waiver of

summons.

According to Norris, his attorney, Matthew J. Koes,1 informed Norris that Board Counsel

Courtney Doherty agreed to accept service of Norris’s complaint and would be waiving service

by summons. See Motion for Evidentiary Hearing and Court Order 2 [Doc. No. 18]. Norris

contends further that on May 26, 2022, he sent a letter to Attorney Doherty thanking her for

agreement to accept service and waive service by summons and enclosed a copy of his complaint

and a waiver form. Id.; id. at Ex. D [Doc. No. 18-4]. Norris states that he also sent a copy of the

complaint to Assistant Attorney General Thomas Bocain. Motion for Evidentiary Hearing and

Court Order 2 [Doc. No. 18]; id. at Ex. E [Doc. No. 18-5]. While Norris’s Motion for Leave to

Proceed in forma pauperis [Doc. No. 8] was pending, and before summonses had issued, Norris

filed a Notice of Service [Doc. No. 9] providing substantially the same information and asserting

that service had been made on Defendants and that Defendants had waived service. See Norris

Affidavit [Doc. No. 9-1].

Norris states that Attorney Kos later told him that Attorney Doherty informed Attorney

Kos that she never agreed to accept service and waive service by summons. Motion for

Evidentiary Hearing and Court Order 3 [Doc. No. 18]. Norris seeks an evidentiary hearing to

resolve this dispute.

On July 26, 2022, after screening the complaint and dismissing certain claims, the court

granted Norris’s renewed Motion for Leave to Proceed in Forma Pauperis [Doc. No. 8]. Order

[Doc. No. 10]. Summonses were issued for each Defendant along with instructions for service by

the United States Marshals Service. See Notice [Doc. No. 12]; Summons [Doc. No. 13]. The

Order [Doc. No. 10] acknowledged that Plaintiff was not required to serve a summons and

1 Attorney Koes is not representing Norris in the present action but according to the Affidavit of

Attorney Matthew J. Koes [Doc. No. 16-6], dated July 6, 2022, Koes was assigned by the

Committee for Public Counsel Services (“CPCS”) to represent Norris in an appeal from the

revocation of his parole. Koes Affidavit [Doc. No. 16-6].

complaint on any Defendant from whom he had obtained a waiver of service, but instructed

Norris that he was still required to file a copy of the executed waiver of service of summons for

any such Defendant. See Order [Doc. No. 10]. No such executed waiver form has been filed.

The Notice of Lawsuit and Request for Waiver of Service of Summons [Doc. No. 18-4]

that Norris states he forwarded to Attorney Doherty sets forth the waiver procedure as follows:

If you comply with this request and return the signed waiver, it will be filed with

the court and no summons will be served on you. . . .

If you do not return the signed waiver within the time indicated, I will take

appropriate steps to effect formal service in a manner authorized by the Federal

Rules of Civil Procedure . . . .

It is undisputed that neither Attorney Doherty nor any individual Defendant returned the

signed waiver. Accordingly, the next step is not an evidentiary hearing to determine

whether Attorney Doherty had made a verbal commitment (and if she had, whether she

had the individual Defendants’ consent to do so). Instead, if Norris seeks to proceed with

this suit, he must provide the United States Marshals Service completed packets to allow

for service on each individual Defendant. Accordingly, Norris’s Motion for Evidentiary

Hearing and Court Order [Doc. No. 18] is DENIED.

II. Emergency Motion for Preliminary Injunction [Doc. No. 15]

Norris seeks a preliminary injunction enjoining the revocation of his parole. He argues

that a preliminary injunction is needed because he is set to begin an apprenticeship program in

September 2022, and “further incarceration could lead to termination from the apprenticeship

program and his union employment.” Emergency Motion for Preliminary Injunction 2 [Doc. No.

15]. Norris’s Certificate of Service [Doc. No. 17] states that he served a copy of this motion via

first class mail on Assistant Attorney General Thomas Bocain. Norris identifies Attorney Bocain

as Defendants’ counsel, but Attorney Bocain has not appeared on behalf of the Defendants in this

action.

Federal Rule of Civil Procedure authorizes a court to issue a temporary restraining order

without notice to the adverse party where the moving party demonstrates “immediate and

irreparable injury, loss, or damage before the adverse party can be heard in opposition.” Fed. R.

Civ. P. 65(b)(1)(A). “[T]he court may issue a preliminary injunction only on notice to the

adverse party.” Fed. R. Civ. P. 65(a)(1). The safeguards required by Rule 65 must be

“scrupulously honored.” 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2952 (3d ed.); see also Granny Goose Foods v. Bhd. of Teamsters & Auto Truck

Drivers, 415 U.S. 423, 438-39 (1974) (“[Rule 65’s] stringent restrictions . . . reflect the fact that

our entire jurisprudence runs counter to the notion of court action taken before reasonable notice

and an opportunity to be heard has been granted to both sides of a dispute”).

Here, Norris has not demonstrated immediate and irreparable injury before the

Defendants can be heard in opposition. At the same time, while the court will require notice to

the Defendants, formal service of process is not required before the court considers the request

for preliminary injunctive relief. Norris may give the required notice by mailing copies of his

motion for injunctive relief and supporting documents and this Memorandum and Order on the

Defendants and filing a certificate of such service.

The clerk shall set the Motion for Preliminary Injunction [Doc. No. 15] for hearing in

early September.

III. Motion for Appointment of Counsel [Doc. No. 14],

A court “may request an attorney to represent any person unable to afford counsel.” 28

U.S.C. § 1915(e)(1). Because a civil party lacks a constitutional right to free counsel, however,

there is no mandate that a court request pro bono counsel. See DesRosiers v. Moran, 949 F.2d

15, 23 (1st Cir. 1991). In determining whether to request counsel, the court considers whether the

requesting party is indigent and whether exceptional circumstances exist such that the denial of

counsel will result in fundamental unfairness impinging upon the party’s due process rights. Id.

In assessing whether exceptional circumstances exist, the court examines the total situation,

including the merits of the case, the complexity of the legal issues, and the litigant’s ability to

represent himself. Id.

The court has granted Norris leave to proceed in forma pauperis. Order [Doc. No 10]. As

in Wilborn v. Wall, No. CIV.A. 13-11783-GAO, 2013 WL 5671302, at *2 (D. Mass. Oct. 11,

2013), “because the defendants have not been served with or responded to the complaint, the

Court cannot determine whether exceptional circumstances exist that would justify appointment

of counsel.” As such, Norris’s claims of exceptional circumstances do not warrant a request for

pro bono counsel at this time. Norris may renew the motion once the Defendants have been

served with and responded to the complaint. Accordingly, Norris’s Motion to Appoint Counsel

[Doc. No. 14] is DENIED without prejudice.

IT IS SO ORDERED.

/s/ Indira Talwani

United States District Judge

August 18, 2022