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Bragg v. Wilson

United States District Court, D. New Jersey

December 21, 2017

BRIAN KEITH BRAGG, Plaintiff,
v.
TODD WILSON, et al., Defendants.

          ORDER

          LOIS H. GOODMAN, UNITED STATES MAGISTRATE JUDGE

         This matter has been opened to the Court upon requests filed by pro se Plaintiff Brian Bragg (“Plaintiff”) seeking: (1) appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1) [Docket Entry Nos. 33 and 46[1]; (2) permission to retain a psychiatrist to determine Plaintiff's competency pursuant to Fed.R.Civ.P. 17 [Docket Entry Nos. 49 and 53]; and (3) a stay of the proceedings pending appointment of pro bono counsel [Docket Entry No. 51]. Defendants have not opposed Plaintiff's requests. The Court has reviewed and considered the Plaintiff's submissions without oral argument in accordance with Fed.R.Civ.P. 78.

         I. Background

         Plaintiff is incarcerated and proceeding in forma pauperis. At the outset of this case, Plaintiff filed three Complaints in rapid succession.[2] [Docket Entry Nos. 1-3]. The Honorable Freda L. Wolfson, U.S.D.J., screened those Complaints under 28 U.S.C. § 1915. Memorandum and Order entered June 29, 2016 [Docket Entry No. 8]. As construed by the Court at that time, Plaintiff's operative claims allege pursuant to 28 U.S.C. § 1983 that certain staff and officials at the Mercer County Correctional Facility violated Plaintiff's constitutional rights by subjecting him to excessive force, failing to make him safe, and filing false disciplinary charges. Id.

         II. Plaintiff's Arguments

         In his pro bono application, Plaintiff asserts that he has no legal skills or training and he has only a limited knowledge of the law. [ECF No. 33 at 2]. He also asserts that Southern State Correctional Facility[3] has limited resources and that he is permitted only limited time at the library. Id. According to Plaintiff, he has only a sixth-grade education and “takes several psychotropic medications for several mental health issues such as bipolar.” Id. at 3. Plaintiff also argues that “his case will raise credibility issues and will require a great deal of investigation.” Id. Moreover, his case will require a great deal of discovery, much of which he believes Defendants will claim is privileged. Plaintiff requests the appointment of the same pro bono counsel who represented him in a previous case. Id. at 3-4.

         Plaintiff's second submission, entitled “Motion to Reconsider Denial of Motion to Appoint Pro Bono Counsel, ” shifts the emphasis of his request for counsel. [Docket Entry No. 46]. Therein, Plaintiff asserts that he suffers from a series of mental illnesses and that these illnesses are preventing him from presenting his claims. Id. at 2-3. Under the circumstances, he argues, the Court should either appoint pro bono counsel or order a psychiatric evaluation to assess Plaintiff's competency to proceed without appointed counsel. Id. at 3.

         Plaintiff's third submission, entitled “Motion to Request Permission to Retain a Psychiatrist to Determine Plaintiff's Competency Pursuant to Rule 17 Fed. R. Civ. P., ” reiterates his prior request for the Court to order a competency assessment. [Docket Entry No. 49]. Plaintiff provides the Court with a copy of a relevant decision from the Third Circuit Court of Appeals. Plaintiff also cites an unrelated suit brought by Plaintiff in this district in which the Court ordered that he be psychologically examined. Id. at 1-2 (citing Bragg v. Agarwal, et al., Civ. No. 09-4331, and consolidated cases). Based upon his long history of mental illness, contends Plaintiff, the Court should again retain a psychologist or psychiatrist to evaluate him. Id. at 2.

         Plaintiff's fourth submission, entitled “Motion to Stay Proceedings, ” seeks a stay of the case pending the Court decision as to granting pro bono counsel and a psychological evaluation. [Docket Entry No. 51]. Plaintiff again asserts that he continues to suffer from a series of mental health issues, which, in combination with the medications he is taking for them, are inhibiting his ability to concentrate and to reason. Id. at 1-2.

         Plaintiff's final submission, entitled “Letter Motion to Supplement Record, ” attaches two documents for the Court to consider as part of the preceding applications: a copy of a letter to the Court seeking pre-approval for a psychologist to evaluate him that was sent by Plaintiff's appointed pro bono counsel in Bragg v. Agarwal, et al.; and a letter from the Court in that case acknowledging that it had received the psychologist's written report in camera. [Docket Entry No. 53].

         III. Plaintiff's Request for a Psychiatric Evaluation

         On its face, Plaintiff's claim that his mental illnesses are preventing him from effectively representing himself appears to repeat the events of one of his prior cases, Bragg v. Agarwal, et al., Civ. No. 09-4331. This request, and Plaintiff's same arguments, were recently addressed in another of Plaintiff's cases, Bragg v. Tuccillo, et al., Civ. No. 16-8628, (D.N.J. November 20, 2017) (“Tuccillo”). In that matter, Plaintiff also sought a psychiatric evaluation in reliance on Agarwal. By way of background, the Court in Tuccillo recounted the procedural history of Agarwal.

Bragg filed the Agarwal matter in August 2009. (Docket No. 09-4331 at ECF No. 1.) Judge Brown granted a request for appointed counsel in Agarwal in November 2009. (Docket No. 09-4331 at ECF No. 32-33.) Bragg, however, was immediately unhappy with appointed counsel and requested different counsel be appointed. (Docket No. 09-4331 at ECF No. 40.) In February 2010, the Court appointed Robert Goodman to represent Bragg. (ECF No. 46.) Mr. Goodman continued to represent him through March 2012, at which point Mr. Goodman requested permission to withdraw as Bragg's attorney because Bragg had expressed his desire not to continue with Mr. Goodman as his attorney and because Bragg “made numerous misrepresentations” about his firm's handling of Bragg's cases, made “unreasonable demands, ” and requested that counsel “take unreasonable positions” despite orders of the Court informing Bragg that counsel did not represent Bragg for all time and for all purposes. (Docket No. 09-4331, Mot. To Withdraw (ECF No. 86-1) at 2-3.)
However, during a conference regarding Mr. Goodman as his counsel, Bragg “indicated that he no longer wished to have counsel relieved.” (Docket No. 09-4331 at ECF No. 89.) Bragg's apparent history of mental illness also arose during that hearing, and Judge Bongiovanni therefore requested copies of Bragg's medical records to determine if the appointment of a guardian ad litem was necessary pursuant to the Third Circuit's ruling in Powell v. Symons, 680 F.3d 301 (2012). (Id.) Counsel apparently submitted those records for in camera review, and those records are not currently before the Court. Based on the submitted medical records, Judge Bongiovanni denied the motion to withdraw counsel without prejudice, but ordered a psychiatric evaluation pursuant to Powell to determine Bragg's competency. (Docket No. 09-4331 at ECF No. 91.) Although Judge Bongiovanni required Mr. Goodman to remain counsel for Bragg “as previously ...

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