UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

THOMAS M. SMITH, ) Plaintiff, ) ) Civ. Action No. 21-10124-PBS v. ) ) JAMES M. CUMMINGS, et al., ) Defendants. )

ORDER

August 12, 2021

SARIS, D.J.

Plaintiff Thomas M. Smith (“Smith”) initiated this pro se action on January 21, 2021, while in custody at the Barnstable County Correctional Facility. Dkt. No. 1. At that time, Smith’s motion for leave to proceed in forma pauperis was denied without prejudice. Dkt. No. 4. Smith subsequently filed a notice of change of address, Dkt. No. 5, and a renewed motion for leave to proceed in forma pauperis. Dkt. No. 8. By Memorandum and Order dated May 10, 2021, the Court granted Smith’s motion for leave to proceed in forma pauperis, directed the clerk to issue a summons for defendant David Cahoon and advised Smith that the claims against the remaining defendants are subject to dismissal. Dkt. No. 9. The Clerk issued summons as to David Cahoon and a notice with instructions for service by the United States Marshals Service. Dkt. Nos. 10, 11. On June 24, 2021, the summons and copy of the May 10, 2021 Memorandum and Order that was mailed to the plaintiff was returned to the Court as undeliverable. Dkt. No. 13. On August 18, 2021, Smith filed a motion to appoint counsel. Dkt. No. 14. In his motion, Smith requests the status

of this lawsuit and states that he has been “re-incarcerated.” Id. Although pursuant to the

(e)(1), the Court “may request an attorney to represent any person unable to afford counsel,” it is well settled that “[t]here is no absolute constitutional right to a free lawyer in a civil case.” DesRosiers v. Moran,

(1st Cir. 1991). Here, Smith fails to provide sufficient reasons why this Court should exercise its discretion to appoint counsel in this case. Moreover, it appears that Smith never received a copy of the Court’s May 10, 2021 Memorandum and Order. Based on the foregoing, it is hereby Ordered that: 1. The motion (Dkt. No. 14) for appointment of pro bono counsel pursuant to

(e)(1) is DENIED without prejudice.2

2. The Clerk shall update Smith’s address on the docket as follows: Thomas M. Smith (#0691248), Barnstable County Correctional Facility, 6000 Sheriff’s Place, Bourne, MA 02532.

3. The Clerk shall re-issue a summons for service of the complaint on defendant David Cahoon. The plaintiff is responsible for serving the summons, complaint, the May 10, 2021 Memorandum and Order and this Order on defendant Cahoon in accordance with Rule 4 of the Federal Rules of Civil Procedure. 4. Because the plaintiff is proceeding in forma pauperis, he may elect to have service completed by the United States Marshals Service (“USMS”). If the plaintiff chooses to have service completed by the USMS, he shall provide the agency with all papers for service and a completed USM-285 form. The USMS shall complete service as directed by plaintiff with all costs of service to be advanced by the United States. The Clerk shall provide the plaintiff with forms and instructions for service.

5. The plaintiff shall have 90 days from the date of the re- issuance of the summons to complete service. Failure to complete service within 90 days may result in dismissal of the action. See Fed. R. Civ. P. 4(m); Local Rule 4.1 (D. Mass.).

6. The claims against Cummings, Hennessey and Montigny are subject to dismissal pursuant to

(e)(2). If plaintiff wishes to pursue a claim against Cummings, Hennessey or Montigny, he shall, within 35 days of the date of this Order, file an amended complaint that states a claim upon which relief may be granted. Failure to comply with this directive will result in the dismissal of the claims against the remaining defendants.

SO ORDERED. /s/ Patti B. Saris PATTI B. SARIS UNITED STATES DISTRICT JUDGE