# Herbert v. Ginty

> District Court, S.D. New York · November 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10327545

## Case

- **Court:** District Court, S.D. New York
- **Decided:** November 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10327545

## How later opinions describe it (automated extraction)

- holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JEREMIAH F. HERBERT,
Plaintiff,
-against-
ORDER
WARDEN HAROLD L. SMITH; CPL.
20-CV-6348 (PMH)
CALANGELO; CAPT. JAMES E. GINTY;
DEPUTY R. RUGGIERO; LT. CHRIS BINI;
CPL. MATIS; FRANK LABUDA, ESQ.,
Defendants.
PHILIP M. HALPERN, United States District Judge:
Plaintiff, currently incarcerated at the Sullivan Correctional Jail, proceeding pro se and in
forma pauperis, brings this action under 42 U.S.C. §1983 alleging that Defendants violated his
constitutional rights.
Plaintiff filed an Amended Complaint on September 3, 2020 (Doc. 9) and a Second
Amended Complaint on September 29, 2020 (Doc. 14). Also, on September 29, 2020, Plaintiff
filed a proposed show cause order seeking preliminary injunctive relief. (Doc. 13). Plaintiff’s
proposed order sought immediate access to religious services, the law library, paper, postage, and
other materials, and a ceasing of the alleged violence being directed at him. (Id.).
On October 5, 2020, the Court issued an Order of Service (the “October 5 Order”). (Doc.
15). The October 5 Order (1) dismissed Plaintiff’s claims against Defendant LaBudo on immunity
grounds, (2) dismissed Plaintiff’s access-to the court claim for failure to state a claim on which
relief can be granted, (3) granted Plaintiff leave to file a Third Amended Complaint regarding his
conditions-of-confinement claim, and (4) instructed the U.S. Marshals to effectuate service on
Defendants Smith, Calangelo, Ginty, Ruggiero, Bini, and Matis. (Id. at 9). Only Plaintiff’s
religious discrimination claim was not dismissed. Additionally, the October 5 Order denied
Plaintiff’s application to issue a show cause order regarding his request for preliminary injunctive
relief finding that Plaintiff had “not carried his burden of showing that he will suffer irreparable
harm if he is not awarded the extraordinary and drastic remedy of preliminary injunctive relief.”
(Id. at 7-8).
On October 19, 2020, Plaintiff timely filed his Third Amended Complaint (“TAC”). (Doc.

18, Third Am. Compl., “TAC”). That same day, Plaintiff filed a request that the Court appoint him
counsel and a second proposed show cause order seeking preliminary injunctive relief. (Docs. 19,
21).
I. Access to Courts Claim
The October 5 Order dismissed Plaintiff’s access-to-the-courts claim for failure to state a
claim upon which relief can be granted. (Doc. 15 at 4-5). The Court found that:
Plaintiff provides no facts showing that any defendant’s conduct resulted in actual
injury to Plaintiff, such as the dismissal of an otherwise meritorious legal claim.
Christopher v. Harbury, 536 U.S. 403, 412-15 (2002); Lewis v. Casey, 518 U.S.
343, 350-53 (1996). And there are no facts to suggest that defendants subjected
Plaintiff to regular and unjustifiable interference with his mail. See Davis v. Goord,
320 F.3d 346, 351 (2d Cir. 2003) (“[A]n isolated incident of mail tampering is
usually insufficient to establish a constitutional violation.”); Washington v. James,
782 F.2d 1134, 1139 (2d Cir. 1986).
(Id. at 4). The Court did not grant Plaintiff permission to amend his Complaint to re-assert
a First Amendment access-to-the-courts claim. (Id. at 9). In any event, the access-to-the-
courts claim in Plaintiff’s TAC, suffers from the same deficiencies as the access-to-the-
courts claim in Plaintiff’s Second Amended Complaint. Accordingly, Plaintiff’s claim is
dismissed for failure to state a claim on which relief may be granted. 28 U.S.C.
§1915(e)(2)(B)(ii).
II. Unconstitutional Conditions of Confinement Claim
The October 5 Order dismissed Plaintiff’s unconstitutional conditions of
confinement claim without prejudice and granted Plaintiff permission to file a Third
Amended Complaint to provide additional factual material in support of such a claim.
(October Order at 7). Based on the additional factual allegations asserted in Plaintiff’s TAC,

and mindful of the Court’s obligation to construe a pro se litigant’s Complaint liberally, see
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), the Court does not, sua sponte, dismiss
Plaintiff’s unconstitutional conditions of confinement claim asserted under the Fourteenth
Amendment pursuant to 42 U.S.C. § 1983.
III. Request for Counsel
The in forma pauperis statute provides that the courts “may request an attorney to represent
any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Unlike in criminal cases, in civil
cases, there is no requirement that courts supply indigent litigants with counsel. Hodge v. Police
Officers, 802 F.2d 58, 60 (2d Cir. 1986). Instead, the courts have “broad discretion” when deciding

whether to grant an indigent litigant’s request for representation. Id. Even if a court does believe
that a litigant should have a lawyer, under the in forma pauperis statute, a court has no authority
to “appoint” counsel, but instead, may only “request” that an attorney volunteer to represent a
litigant. Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 301–310 (1989).
Moreover, courts do not have funds to pay counsel in civil matters. Courts must therefore grant
applications for counsel sparingly, and with reference to public benefit, in order to preserve the
“precious commodity” of volunteer-lawyer time for those litigants whose causes are truly
deserving. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir. 1989).
In Hodge, the Second Circuit set forth the factors a court should consider in deciding
whether to grant a litigant’s request for counsel. 802 F.2d at 61-62. Of course, the litigant must
first demonstrate that he or she is indigent, see Terminate Control Corp. v. Horowitz, 28 F.3d 1335,
1341 (2d Cir. 1994), for example, by successfully applying for leave to proceed in forma pauperis.
The court must then consider whether the litigant’s claim “seems likely to be of substance” – “a

requirement that must be taken seriously.” Id. at 60–61. If these threshold requirements are met,
the court must next consider such factors as:
the indigent’s ability to investigate the crucial facts, whether conflicting evidence
implicating the need for cross-examination will be the major proof presented to the
fact finder, the indigent’s ability to present the case, the complexity of the legal
issues[,] and any special reason in that case why appointment of counsel would be
more likely to lead to a just determination.
Id.; see also Cooper, 877 F.2d at 172 (listing factors courts should consider, including litigant’s
efforts to obtain counsel). In considering these factors, district courts should neither apply bright-
line rules nor automatically deny the request for counsel until the application has survived a
dispositive motion. See Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Rather, each
application must be decided on its own facts. See Hodge, 802 F.2d at 61.
Here, Plaintiff has been granted permission to proceed in forma pauperis. (Doc. 5).
Plaintiff therefore qualifies as indigent.
Plaintiff asserts a religious discrimination claim and an unconstitutional conditions of
confinement claim. Based on Plaintiff’s allegations, the Court cannot determine whether Plaintiff’s
claims are “likely to be of substance,” Hodge, 802 F.2d 61-62, and finds that the other Hodge
factors weigh against granting Plaintiff’s application at this early stage. Thus, Plaintiff’s request
for counsel is denied without prejudice to renewal at a later time.
IV. Request for Preliminary Injunctive Relief
Plaintiff requests that the Court issue an Order requiring Defendants to show cause why
Plaintiff is not entitled to preliminary injunctive relief based on Plaintiff’s allegations that he is
being denied access to the courts. (Doc. 19). Plaintiff’s First Amendment access-to-the-courts
claim asserts that Sullivan County Jail does not have an adequate law library. Specifically, Plaintiff

alleges that (1) there is not a proper printer, (2) there is not an adequate photocopy machine, and
(3) pretrial detainees are not provided adequate legal assistance. (Id. at 3). Plaintiff requests that
the Court issue an Order (1) providing a printer for pretrial detainees, (2) providing free
photocopies, and (3) granting pretrial detainees access to the Jailhouse Lawyer Manuel and the
right to meet with attorneys inside a confidential area. (Id. at 4-5). In support of the proposes order,
Plaintiff has appended letters from four other pretrial detainees that are allegedly also being denied
access to the courts. (Id. at 6-11).
To obtain such immediate injunctive relief, Plaintiff must show: (1) that he is likely to
suffer irreparable harm and (2) either (a) a likelihood of success on the merits of his case or

(b) sufficiently serious questions going to the merits to make them a fair ground for litigation and
a balance of hardships tipping decidedly in his favor. See UBS Fin. Servs., Inc. v. W.V. Univ. Hosps.,
Inc., 660 F. 3d 643, 648 (2d Cir. 2011) (citation and internal quotation marks omitted); Wright v.
Giuliani, 230 F.3d 543, 547 (2000). Preliminary injunctive relief “is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a clear showing, carries the burden
of persuasion.” Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir. 2005) (internal
quotation marks and citation omitted).
The Court dismissed Plaintiff’s access-to-the-courts claim in the October 5 Order, and
again here, for failure to state a claim upon which relief can be granted. Thus, Plaintiff’s request
that the Court issue a show cause order for preliminary injunctive relief premised on the already
dismissed access-to-the-courts claim is denied. To prevail on an access to courts claim, “a plaintiff
must demonstrate ‘actual injury’ by proving that the denial of access ‘hindered his efforts’ to pursue
a non-frivolous legal claim.” Whitfield v. Imperatrice, 477 F. App'x 806, 808 (2d Cir. 2012)
(quoting Lewis v. Casey, 518 U.S. 343, 349, 351–53 (1996)). Based on Plaintiff’s litigation conduct

it does not appear that he has suffered any “actual injury.” Since this action commenced on August
11, 2020, Plaintiff has filed a Complaint and three subsequent amended complaints (Docs. 1, 9,
14, 18), two proposed orders to show cause (Docs. 13, 19) and numerous other letters to the Court.
Having reviewed Plaintiff’s allegations in his TAC and Plaintiff’s filings in this action, the Court
finds, at this time, that Plaintiff has not carried his burden of showing he will suffer irreparable
injury if he is not awarded the extraordinary and drastic remedy of preliminary injunctive relief.
CONCLUSION
The Court dismisses Plaintiff’s access-to-the-courts claim for failure to state a claim on
which relief may be granted, denies Plaintiff’s request that the Court appoint counsel without

prejudice, and denies Plaintiff’s request that the court issue a show cause order for preliminary
injunctive relief.
Plaintiff’s remaining claims include the religious discrimination claims asserted in
Plaintiff’s Second Amended Complaint and the unconstitutional conditions of confinement claim
asserted in Plaintiff’s TAC. Thus, Plaintiff’s allegations regarding these two surviving claims in
his Second Amended Complaint and TAC together constitute the operative pleading.
On October 26, 2020, the Marshals effectuated service on the Defendants and Defendants
shall answer or move by December 14, 2020. (Docs. 22-27).
The Clerk of Court is directed to mail a copy of this order to Plaintiff and to terminate ECF
No. 21.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not
be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal.
Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant

demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
Dated: November 16, 2020
New York, New York
PHILIP M. HALPERN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10327545. Public record. Not legal advice.