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D'Alessandro v. Bugler Tobacco Co.

May 17, 2010

MICHAEL R. D'ALESSANDRO, PLAINTIFF,
v.
BUGLER TOBACCO COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

MEMORANDUM OPINION

This matter is before the Court upon Plaintiff Michael D'Alessandro's request that this Court place his case on administrative hold and/or appoint pro bono counsel [Docket Item 189] and further upon Plaintiff's failure to file an amended complaint by April 30, 2010, as ordered by the Court. THIS COURT FINDS AS FOLLOWS:

1. Plaintiff brought suit in this Court on October 18, 2005. The underlying merits of this case have been addressed at length in other opinions, including this Court's opinion of March 2, 2007, and will not be revisited here. Though the case has remained pending for over four years, Plaintiff has taken no action to move his case forward, other than renew a request for the appointment of counsel, since August 2007, when he requested that the Court stay this case due to his medical difficulties [Docket Item 159].

2. On October 2, 2007, the Court granted Plaintiff's request for a temporary stay [Docket Item 164]. On March 10, 2008, the Magistrate Judge granted in part and denied in part Plaintiff's request to amend his complaint, giving Plaintiff twenty days from the lifting of the order staying his case to file his amended complaint [Docket Item 167].

3. On December 22, 2008, Plaintiff requested that the Court continue to stay the case and renewed his request for appointment of counsel [Docket Item 174], previously denied without prejudice on January 26, 2007 [Docket Item 115], June 26, 2007 [Docket Item 149] and March 10, 2008 [Docket Item 167].

4. On December 28, 2008, the Court extended the stay until January 29, 2009 and ordered that Plaintiff file his amended complaint by February 17, 2009, or the case would be administratively terminated [Docket Item 173].

5. To date, Plaintiff has not filed an amended complaint.

6. In four letters, dated December 17, 2008 [Docket Item 174], December 23, 2008 [Docket Item 175], January 15, 2009 [Docket Item 176], and March 30, 2009 [Docket Item 177], Plaintiff set out his arguments in support of appointment of counsel. In brief, Plaintiff argued that counsel should be appointed because there is no law library at his present institution, his legal papers have not yet been transferred to him, he has no paralegal inmate assistance, he cannot photocopy legal papers, and he is not provided envelopes, paper, pens or access to a typewriter.

7. On June 25, 2009, the Magistrate Judge denied without prejudice Plaintiff's informal application for counsel [Docket Item 179]. The next day, the Court administratively terminated this action without prejudice, based on Plaintiff's repeated representations that he was not able to prosecute his case at this time [Docket Item 180].

8. On July 22, 2009, Plaintiff filed a motion for reconsideration of the Court's Order administratively terminating this action and appeal of the Magistrate Judge's Order denying his request for appointment of counsel without prejudice [Docket Item 182]. On January 26, 2010, the Court affirmed the Magistrate Judge's opinion denying appointment of counsel without prejudice, reopened Plaintiff's case, noting that "Plaintiff has demonstrated himself capable of articulating his claims," and ordered Plaintiff to submit his amended complaint no later than February 22, 2010 [Docket Items 183 & 184].

9. On February 18, 2010, Plaintiff submitted another request for appointment of counsel and asked that the Court reinstate the administrative hold [Docket Item 185]; requests the Court denied on February 23, 2010, finding that Plaintiff had not set forth any new grounds on which the Court would appoint counsel [Docket Item 186]. Nevertheless, the Court did grant Plaintiff an extension of time in which to file his amended complaint until March 16, 2010. The Court stated:

All that is required of Plaintiff is to eliminate from his proposed amended complaint those claims that Judge Donio declined to grant leave to include in his amended complaint. Plaintiff must then file that amended complaint and serve all appropriate parties. To facilitate this next step, the Court will order the Clerk of Court to send Plaintiff, along with a copy of this order, a copy of (1) the docket sheet in this action, (2) Magistrate Judge Donio's March 10, 2008 Order granting in part and denying in part Plaintiff's motion to amend his complaint [Docket Item 167], and (3) Plaintiff's motion to amend his complaint and proposed amended complaint [Docket Item 150]. [Docket Item 186].

10. On March 3, 2010, Plaintiff submitted a letter requesting additional time to submit his complaint in light of an upcoming hearing on his request for post-conviction relief [Docket Item 187]. The Court granted that request, giving Plaintiff until April 30, 2010 to submit his amended complaint [Docket Item 188].

11. Plaintiff did not file his amended complaint by April 30, 2010. Instead, he filed the instant request, largely a repetition of arguments made in his requests on February 18, 2010 [Docket Item 185], July 22, 2010 [Docket Item 182], March 30, 2009 [Docket Item 177], January 15, 2009 [Docket Item 176], December 23, 2008 [Docket Item 175], and December 17, 2008 [Docket Item 174] explaining why he cannot prosecute his case. He states that he cannot submit his amended complaint ...


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