Vernon J. Leftridge v. Connecticut State Trooper Officers $1283

Plaintiff pro se Vernon J. Leftridge, Jr., who commenced

3 the present action pursuant to 42 U. S. C. § 1983 and state law

4 against defendants Connecticut State Trooper #1283 ("Trooper 1283"

5 or "the Trooper") and various agencies of the State of Connecticut

6 (the "State"), appeals from a July 2, 2009 order of the United

7 States District Court for the District of Connecticut, Vanessa L.

8

9

10

Bryant, Judge, denying

which the court had

Leftridge's failure to

Leftridge's motion to reopen his case,

administratively closed, because of

obtain counsel . The court, which ~n

11 February 2009 had imposed a June 29, 2009 deadline for Leftridge

12 to hire counsel, refused to grant an extension of that deadline

13 and refused to reopen the case, stating that Leftridge failed to

14 retain counselor to establish that the retaining of counsel was

15 imminent. On appeal, Leftridge contends principally that the

16 district court's orders improperly denied him the right to

17 prosecute his case pro se. For the reasons that follow, we agree,

18 and we therefore vacate the July 2, 2009 order and remand for

19 fUrther proceedings.

20 I . BACKGROUND

21 Leftridge, an African -American, commenced the present

22 action in July 2007, alleging that, while driving in Connecticut

23 in October 2005, he had been stopped by Trooper 1283 and charged

24 with a traffic violation. The complaint alleged that that charge

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1 was false and that the Trooper's actions were motivated by

2 Leftridge's race, in violat ion of, inter al ia, the Fourteenth

3 Amendment to the United States Constitution.

4 In August 2007, Leftridge moved for the appointment of

5 counsel to represent him. The district court denied the motion,

6 concluding that "the plaintiff's position does not seem likely to

7 be of substance" and that "the legal issues are not complex and

8 the plaintiff has demonstrated in his filings that he is able to

9 investigate the facts of the case and present them to the Court."

10 Order dated October 1, 2007.

11 Defendants moved to dismiss Leftridge's complaint on the

12 grounds, inter alia, that they were entitled to Eleventh Amendment

13 sovereign immunity and/or that the complaint failed to state a

14 claim upon which relief could be granted. Before responding to

15 the motion, Leftridge moved in May 2008 for reconsideration of the

16 district court's denial of his motion for the appointment of

17 counsel. He stated that he lacked knowledge of the law, was not

18 experienced in or competent to understand the litigation process,

19 and was stressed and frustrated with the case. The court denied

20 reconsideration. See Order dated June 10, 2008. In July 2008,

21 the district court granted defendants' motion to dismiss the

22 complaint on Eleventh Amendment grounds insofar as it asserted

23 claims against the State agencies, but denied the motion to

24 dismiss insofar as the complaint asserted claims against Trooper

25 1283 in his individual capacity. See Order dated July 30, 2008.

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1 Leftridge immediately renewed his motion for appointment

2 of counsel. He stated that he was undergoing stress and that he

3 was not competent to proceed because of his lack of experience and

4 legal knowledge. The court denied the motion, stating that

5 Leftridge "ha [d] not provided any basis upon which the Court

6 should reconsider its previous orders." order da ted Augus t 8,

7 2008. Leftridge, despite having indicated that he could not

8 1 i tigate his claims wi thout the assis tance of counsel, proceeded

9 with the case pro se, making numerous motions with respect to,

10 inter alia, discovery matters, his desire to amend the complaint,

11 and a potential default judgment against the Trooper.

12 In February 2009, Leftridge again moved for the

13 appointment of counsel, stating that he had an anxiety and stress

14 disorder and that his doctor had advised that he should not be

15 representing himself. The district court promptly denied the

16 motion, stating that "the Court's earlier ruling. remains in

17 effect," and directing Leftridge to follow instructions previously

18 given by the court as to the time by which and the manner in which

19 pretrial discovery was to be completed, so that motions for

20 summary judgment could be filed. Order dated February 10, 2009.

21 Leftridge then submitted a February 11, 2009 letter to the court

22 from his psychologist, who stated in pertinent part as follows:

23 I have been treating [Vernon Leftridge] since

24 October 2006. I have advised Mr. Leftridge on

25 multiple occasions that his serving as his own

26 attorney has been causing him inordinate anxiety and

27 stress. Consequently, I have recommended to him that

28 he pursue hiring an at torney. He has informed me

29 that you need my verification of such, in order to

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1

2

appoint him counselor to grant him the time to seek

legal counsel.

3 Following its receipt of this letter, the district court entered a

4 further order stating as follows:

5 The plaintiff filed an exhibit in which his

6 psychologist confirms that the plaintiff lS

7 experiencing anxiety and stress as a result of

8 representing himself in this case. The Court has

9 previously declined to appoint counsel for the

10 plaintiff because his position does not seem likely

11 to be of substance. That rul inq remains in ef fect,

12 but it does not prevent the plaintiff from hiring

13 counsel on his own. If the plaintiff wishes to

14 pursue thls case. he may at tempt to hire counsel by

15 6/29/09, and that attorney may then pursue the

16 plaintiff's claims. Given the present circumstances,

17 the case should be administratively closed without

18 prejudice to reopening by an attorney for the

19 plaintiff. The Clerk is directed to

20 administratively CLOSE this file.

21 Order dated February 13,2009 ("February 13 Order") (emphases

22 added) The February 13 Order also "terminated" other motions by

23 Leftridge that had been pending. Id.

24 On June 22, 2009, as the June 29 court-imposed deadline

25 for him to retain counsel approached, Leftridge moved for, inter

26 alia, an extension of time in order to enable him to raise funds

27 to be able to retain a (specified) attorney. The court "den lied

28 the] Motion for Extension of Time, as the plaintiff has failed to

29 establish that an attorney is on the verge of filing an appearance

30 for him." Order dated June 29, 2009 ("June 29 Order").

31 In the meantime, on June 25, 2009, Leftridge also filed a

32 motion to reopen the case notwithstanding his not having retained

33 counsel. He also indicated that he would continue to attempt to

34 raise the money needed to retain counsel. The district court

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1 denied the motion to reopen, stating that "the Court already ruled

2 on the issue in [the June 29 Order denying an extension of time to

3 obtain counsel}." Order dated July 2, 2009 ("July 2 Order").

4 Leftridge filed a notice of appeal, contending that the

5 "judgment entered on July 2, 2009 den[ied him} the right to reopen

6 his case as a pro se/plaintiff." He thereafter filed additional

7 motions in the district court, again asking the district court to

8 reopen his case or extend his time to retain an attorney. Those

9 mot ions were denied on the ground tha t they provided no new

10 information. See Order dated July 9, 2009; Order dated July 15,

11 2009 ("July 15 Order"). The latter order also noted that

12 Leftridge had "already filed a notice of appeal as to the Court's

13 decision not to reopen the case." July 15 Order.

14 II. DISCUSSION

15 On appeal, Leftridge argues principally that the district

16 court abused its discretion by denying his motion to reopen his

17 case to allow him to proceed pro se when he could not afford to

18 retain an attorney. He also contends that the court abused its

19 discretion in denying several of his other motions. Defendants,

20 while noting that the district court did not enter a judgment in

21 this case, urge us to aff irm the closure of the case on the

22 ground that it was properly dismissed for lack of prosecution or

23 for failure to comply with court orders.

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1 For the reasons that follow, we conclude that despite the

2 lack of a "judgment," we have jurisdiction to entertain this

3 appeal pursuant to 28 U. S.C. § 1291; and we conclude that the

4 district court's refusal to reopen the case because of Leftridge's

5 failure to retain an attorney const ituted an abuse o f discretion.

6 A. Appellate Jurisdiction

7 Section 1291 of Title 28 provides, in pertinent part, that

8 the federal courts of appeals "shall have jurisdiction of appeals

9 from all final decisions of the district courts of the United

10 States." 28 U.S.C. § 1291. When a decision of the district court

11 does not pertain to an interlocutory inj unction, a receivership,

12 or a case in admiralty, see id. § 1292 (a), and is not an order

13 that the district court has certified for a potential immediate

14 appeal pursuant to 28 U.S.C. § 1292 (b) , this Court lacks

15 jurisdiction to hear the appeal unless the decision is "final"

16 within the meaning of § 1291 .

17 "A 'final decision' generally is one which ends the

18 litigation on the merits and leaves nothing for the court t o do

19 but execute the judgment." Catlin v. United States, 324 U.S . 229,

20 233 (1945) (emphasis ours); see, ~, Coopers & Lybrand v .

21 Livesay, 437 U.S. 463, 467 (1978) In determining whether a

22 decision is "final" within the meaning of § 1291, we are to give

23 that section a "practical rather than a technical construction,"

24 Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546

25 (1949) and a decision "by which a district court disassociates

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1 i tsel f from a case" lS deemed to be final, Swint v. Chambers

2 County Commission, 514 U.S. 35, 42 (1995); see, ~, Bankers

3 Trust Co. v. Mallis, 435 U.S. 381, 385 n.6 (1978) ("courts of

4 appeals must determine whether the district court intended

5 the judgment to represent the final decision in the case") .

6

7

8

In the present case, it appears that the district court

intended its July 2 Order,

the case or any issue in

although not addressing the merits of

it, to be its final decision in

9 Leftridge's case. As described in Part I above, the court in

10 February 2009 had ordered that the case be "administratively

11 closed"; that order closed the case only conditionally, as it was

12 entered "without prejudice to reopening by an attorney for

13 [Leftridge]" if Leftridge obtained counsel "by 6/29/09."

14 February 13 Order. In its June 29 Order, however, the court

15 refused to extend that deadline, and in its July 2 Order the

16 court refused to reopen the case. Thus, the administrative

17 closure of the case, conditional when first ordered in February,

18 became unconditional. The district court, which thereafter

19 referred to the July 2 Order as "the Court's deci sion not to

20 reopen the case," July 15 Order, therefore appears to have

21 intended its July 2 Order to be its final action in the case.

22 Even if that were not the court's intent, the July 2 Order

23 plainly ended Leftridge's case in the district court as a

24 practical matter. The court's June 29 Order had refused to give

25 Leftridge additional time to retain counsel, thereby precluding

26 him from having an attorney come in to represent him. When the

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1 court also refused, in its July 2 Order, to reopen the case to

2 allow Leftridge to pursue his case without an attorney, it ended

3 his ability to pursue his case by any means.

4 Accordingly, we view the July 2 Order as a final decision

5 within the meaning of § 1291. We cannot, as a matter of sound

6 jurisprudence, conclude that an aggrieved party has no right to

7 appellate review of a district court order that "administratively"

8 unconditionally ends the case.

9 We turn, therefore, to the question of whether the

10 district court's July 2 Order, refusing to reopen the case because

11 Leftridge failed to retain counsel, constituted an abuse of

12 discretion .

13 B. The Propriety of the Administrative Closure and Refusal

14 To Reopen

15 nA district court necessarily abusers) its

16 discretion if it base [5] its ruling on an erroneous view of the

17 law or on a clearly erroneous assessment of the evidence," Cooter

18 & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990), or if n'its

19 decision--though not necessarily the product of a legal error or a

20 clearly erroneous factual finding--cannot be located within the

21 range of permissible decisions,'" Slupinski v. First Unum Life

22 Insurance Co., 554 F.3d 38, 47 (2d Cir. 2009) (quoting Zervos v.

23 Verizon New York, Inc., 252 F.3d 163,169 (2d Cir. 2001)).

24 As a general matter of federal law, an individual

25 proceeding in federal court has the right to present his case pro

26 se: lOIn all courts of the United States the parties may plead and

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1 conduct thei r own cases p e rsona lly." 28 U. S.C. § 1654. See

2 general l y Eagle Associ ates v. Bank of Montreal, 926 F . 2d 1305,

3 1308- 10 (2d Ci r. 19 91) (§ 1654 grants the r i ght of self -

4 representat i on to natural persons, not to corporat i ons or other

5 art i f i c i al ent i t i es). If an adult i nd i v i dual wishes to conduct

6 h i s case pro se, an order requiring him i nstead to reta i n counsel

7 to represent h i m v i olates § 1654. An order dismi ssi ng the act i on

8 of such a pro se plai nt i ff for fa i lure to retain counsel is a

9 legal error and cannot be located within the range of permi ssi ble

10 dec i s i ons. Accordi ngly, i n the present case, the d i stri ct court's

11 July 2 Order refus i ng to reopen the case solely because Leftri dge

12 had not obt a i ned counse l, thereby precludi ng h im from pursui ng h i s

13 case pro s e , consti tuted an abuse of d i scret i on.

14 Defendants argue that the Jul y 2 Order was e ssent i ally a

15 d i smi ssal of Leftri dge's case" I [f]or fa i lure of the plai nt i ff to

16 prosecute o r to comply wi th the[ Federal Rules of Ci v i l Procedure]

17 or any order of court. ,,, (Defendant s ' bri ef on appeal at 5

18 (quot i ng Fed. R. Ci v. P. 41 (b) (2006» . ) They urge that the July 2

19 Order "be affirmed and [that] this case remain closed"

20 (Defendants' bri ef on appeal at 8), stating pri ncipally that

21 Leftri dge did not begi n d i scovery during the court-ordered t i me

22 for d i scovery "from Ju l y 2008 to March 2009 " (id . at 6; ~ i d.

23 at 6-7) and that the court "si mply compl i ed wi th pla i nt i ff's

24

25

26

request that he not be requ i red

legal representa tion" ( i d. at 7)

arguments and characteri zations.

to l i t i gate th i s case wi thout

We are unpe rsuaded by these

The r e cord does not i nd icate

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1 that defendants ever moved pursuant to Rule 41{b) for an order of

2 dismissal for failure to prosecute, or that the district court

3 conducted the analysis that would have been required had

4 defendants made such a motion, see generally Martens v. Thomann,

5 273 F . 3d 159, 180 (2d Cir. 2001). Nor is it at all clear that,

6 upon such an analysis, the record would have warranted dismissal .

7 It does not appear that there was a failure to prosecute; indeed,

8 defendants compl ain in their brief on appeal that they were

9 required to respond to motion practice by Leftridge that was

10 "voluminous" (Defendants' brief on appeal at 7) Nor do the

11 district court docket entries support defendants' suggestion that

12 Leftridge was derelict for fai l ing to make any attempt to conduct

13 discovery during the period July 2008 to March 2009. Those

14 entries indicate, inter alia, that during the early part o f that

15 period Leftridge was attempting to have defendants produce

16 videotapes of his traffic arrest--production that the district

17 court had ordered but that was delayed by several defense motions

18 for extensions of time that Leftridge opposed--and that in

19

20

December

deposition

2008

of

Leftridge moved for permission to take the

Trooper 1283. And, of course, the February 13

21 Order administratively closed the case nearly a month before the

22 discovery period was scheduled to end.

23 Final l y, we are not persuaded by defendants' argument that

24 the court simply granted Leftridge's own wish to proceed only with

25 the assistance of counsel. His repeated requests for appointment

26 of counsel did not necessarily mean that Leftridge would choose

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1 not to proceed pro se if that choice would result in dismissal.

2 He had in fact proceeded pro se for some 18 months despite the

3 denial of counsel and his complaints that he was not well equipped

4 to proceed on his own. That said, we note that we are not

5 inclined to view the district court's February 13 Order itself,

6 which conditionally closed the case without prejudice to its

7 reopening if Leftridge obtained counsel by June 29, as an abuse of

8 discretion. That order was entered, without objection by

9 Leftridge, only after Leftridge submitted the letter from his

10 psychologist indicating that Leftridge's serving as his own

11 attorney was detrimental to his health. Clearly the court did not

12 abuse its discretion by giving Leftridge time to retain counsel,

13 although it would have been preferable for the court to have said

14 that the action was stayed, rather than closed; and the court

15 should have specified that if Leftridge did not retain counsel (by

16 such deadline as the court imposed) he nonetheless had the option

17 of proceeding pro se. And once Leftridge was unable to retain

18 counsel before the June 29 deadline and asked that the case be

19 reopened in order to allow him to proceed pro se, he should have

20 been allowed to proceed pro se. The inability of an individual

21 litigant to obtain counsel is not a basis for denying him his

22 statutory right to pursue his case pro se.

23 C. Leftridge's Other Contentions

24 Leftridge also contends, with little specificity, that the

25 district court "abuse[d] its discretion when it denied several ll of

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1

2

his other motions. (Leftridge

extent that Leftridge means to

brief on appeal at 4.)

challenge the district

To the

court's

3 orders denying his repeated motions for the appointment of

4

5

6

counsel, he provides no basis for overturning

party has no constitutionally guaranteed right

those orders. A

to the assistance

of counsel in a civil case. See, ~, United States v. Coven,

7 662 F.2d 162, 176 (2d Cir. 1981), cert. denied, 456 U.S. 916

8 (1982) . A district court's decision not to "request an attorney

9 to represent" an indigent civil plaintiff pursuant to 28 U.S.C.

10

11

12

§ 1915 (e) (1) is reviewable only for abuse of discretion. See,

~,

Police

Pena v. Choo, 826 F.2d 168,

Officers, 802 F.2d 58, 60

168 (2d Cir. 1987); Hodge v.

(2d Cir. 1986); Miller v.

13 Pleasure, 296 F.2d 283, 284-85 (2d Cir. 1961), cert. denied, 370

14 U.S. 964 (1962). The court properly denies the plaintiff's motion

15 for counsel if it concludes that his chances of success are highly

16 dubious. See, ~, Pena v. Choo, 826 F.2d at 169; Miller v.

17 Pleasure, 296 F.2d at 285.

18

19

20

Here ,

appointment of

In denying

counsel, the

Leftridge's

court stated,

initial motion for

inter alia, that his

case appeared to lack substance. In addressing several of

21 Lef tridge's renewed requests for counsel, the court again noted

22 that Leftridge's case appeared to be weak and/or stated that

23 Leftridge had not provided any new information to alter the

24 court's initial assessment. In the circumstances, and on the

25 record before us, we see no abuse of discretion in the district

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1 court's denial of Leftridge's requests for the appointment of

2 counsel.

3

4

5

6

To the extent that Leftridge seeks to challenge other

rulings of

amend his

decline to

the district court on such matters

complaint

address

or his requests relating

those matters, which will

as his desire

to discovery,

more properly

to

we

be

7 dealt with on an appeal, if any, from a final judgment that in

8 some manner resolves Leftridge's case on substantive or procedural

9 grounds, rather than closing it administratively.

10 CONCLUSION

We have considered all of defendants' arguments in support of the district court's refusal to reopen Leftridge's case and have found them to be without merit. For the reasons discussed above, the July 2, 2009 order is vacated, and the matter is remanded for proceedings not inconsistent with this opinion.



Leftridge must be allowed, if he wishes, to pursue his action pro se. We of course express no view as to the merits of his claims.



No costs are awarded at this time. In the event that Leftridge ultimately prevails on the merits of any of his claims, the district court should award him the costs of the present appeal.