Opinion

Brown v. Annucci

Court
District Court, S.D. New York
Filed
Aug 25, 2021
Cited by
0 cases
Authority
More cited than 27.3%

The opinion

UNITED STATES DISTRICT COURT DOCUMENT

SOUTHERN DISTRICT OF NEW YORK BLED DSO BLED

DOC #:

CARL BROWN, DATE FILED: 08/25/2021

Plaintiff,

-against- 19-cv-2296 (NSR)

ORDER

FORMER SUPT. Of GREEN HAVEN

THOMAS GRIFFIN et al.,

Defendants.

NELSON S. ROMAN, United States District Judge:

Plaintiff Carl Brown (“Plaintiff”) brings this pro se action pursuant to 42 U.S.C. § 1983

alleging violations of his Constitutional rights. (ECF No. 2.) By order dated June 20, 2019, the

Court granted Plaintiffs request to proceed without prepayment of fees, that is, in forma pauperis

(“IFP”). (ECF No. 8.) On August 24, 2020 and August 26, 2020, the Court received letters

seeking, inter alia, the appointment of pro bono counsel. (ECF Nos. 47 & 48.) On September 9,

2020, the Court denied Plaintiff’s application without prejudice. (ECF No. 49.) On December 4,

2020, the Court granted the Defendants leave to file a motion to dismiss the second amended

complaint. (ECF No. 63.)

From December through January of 2021, Plaintiff filed multiple letters stating he was

being harassed by the Defendants and losing privileges, including access to the Law Library and

legal materials. (ECF Nos. 61, 64, 65 & 66.) In response, the Court directed the Defendants to

respond to the allegations and provided Plaintiff with a 60-day extension to oppose the motion to

dismiss. (ECF No. 70.) After Defendants failed to respond to Plaintiff’s allegations, Plaintiff filed

two additional letters in March of 2021, seeking a further extension on similar grounds. (ECF

Nos. 74 & 75.) The Court again ordered the Defendants to respond to Plaintiff’s allegations, which

they did on April 8, 2021. (ECF Nos. 76 & 81.) Defendants alleged that Plaintiff was not granted

access to the Law Library because (1) “Plaintiff [] sought medical accommodations for Law

Library access that were not determined medically necessary,” and (2) Plaintiff refused to provide

paperwork demonstrating he had an upcoming court deadline per Covid-19 protocol. (ECF No.

81.) The Court then granted Plaintiff an extension until May 3, 2021. (ECF No. 82.)

On May 6, 2021, Plaintiff filed two documents purporting to be his opposition to the

Defendants’ motion. (ECF Nos. 85 & 86.) On May 18, 2021, the Defendants filed their motion

to dismiss. (ECF No. 88.) From May through July of 2021, the Court received several additional

letters from Plaintiff, with various allegations about continued retaliation and harassment. (ECF

Nos. 87, 91, 92, 93, 94, & 95.) In short, Plaintiff alleged that correctional officers were continuing

to spread rumors about him to provoke other inmates into harassing him and taking all of his

property, and that he has continuously been denied medical care and sexually harassed. (Id.)

Plaintiff also requested more time to respond to the Defendants’ motion. (ECF Nos. 92 & 93.)

The Court again requested the Defendants respond to Plaintiff’s allegations. (ECF No. 96.)

In their response, Defendants claimed that (1) Plaintiff’s letters are difficult to follow; (2)

the allegations that correctional officers are retaliating based on a lawsuit filed against employees

of another facility is “speculative;” (3) the allegation that Commissioner Annucci approved the

retaliation was “explicitly denied;” (4) Plaintiff was transferred to Great Meadow Correctional

Facility; and (5) Plaintiff failed to avail himself of administrative remedies. (ECF No. 97.)

Defendants also stated they had no objection to the Court granting an extension, (ECF No. 97),

therefore the Court granted Plaintiff a final extension, allowing him to respond on or before

September 7, 2021. (ECF No. 98.) On August 24, 2021, the Court received a letter from Plaintiff

containing additional allegations of harassment and retaliation, a renewed request for pro bono

counsel, and an additional request for extension. (ECF No. 101.) For the below reasons, Plaintiff’s

requests are granted.

LEGAL STANDARD

Unlike in criminal proceedings, the Court does not have the power to obligate attorneys to

represent indigent pro se litigants in civil cases. See Mallard v. U.S. Dist. Court for the S. Dist. of

Iowa, 490 U.S. 296, 308–09 (1989). Instead, pursuant to 28 U.S.C. § 1915(e)(1), the Court may,

at its discretion, order that the Pro Se Office request an attorney to represent an indigent litigant

by placing the matter on a list circulated to attorneys who are members of the Court’s pro bono

panel. See Palacio v. City of New York, 489 F. Supp. 2d 335, 344 (S.D.N.Y. 2007).

The Second Circuit set forth the standards governing the appointment of counsel in pro se

cases in Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997), Cooper v. A. Sargenti Co., 877

F.2d 170, 172 (2d Cir. 1989), and Hodge v. Police Officers, 802 F.2d 58, 60–62 (2d Cir. 1986).

First, the litigant must demonstrate that he or she is indigent, “for example, by successfully

applying for leave to proceed in forma pauperis.” Vinluan v. Ardsley Union Free Sch. Dist., No.

19-CV-06496 (NSR), 2020 U.S. Dist. LEXIS 12146, at *3 (S.D.N.Y. Jan. 21, 2020). The court

must then consider whether the litigant’s claim “seems likely to be of substance.” Id. at 60–61.

This means that it appears to the court, “from the face of the pleadings,” Stewart v. McMickens,

677 F. Supp. 226, 228 (S.D.N.Y. 1988), that the claims asserted “may have merit,” Vargas v. City

of New York, No. 97 Civ. 8426, 1999 WL 486926, at *2 (S.D.N.Y. July 9, 1999), or that the

plaintiff “appears to have some chance of success . . . .” Hodge, 802 F.2d 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. In considering these factors, district courts should neither apply brightline rules nor

automatically deny the request for counsel until the application has survived a dispositive motion.

See Hendricks, 114 F.3d at 392–93. Rather, each application must be decided on its own facts.

See Hodge, 802 F.2d at 61.

DISCUSSION

The last time the Court evaluated Plaintiff’s request for appointment of pro bono counsel

(ECF No. 49), it determined that there was no indication that Plaintiff’s position seems likely to

be of substance, or that there are particularly complex issues requiring the appointment of pro bono

counsel because, in part, Defendants had not yet had an opportunity to respond to Plaintiff’s

Complaint. (ECF No. 49 at 2.) The Court also concluded that, at the time, it could not conclude

that Plaintiff is unable to handle his case without assistance. (ECF No. 49 at 2.) Now, a year later,

the Court is faced with a different set of circumstances.

As an initial matter, the Court has determined, based on a review of Plaintiff’s IFP

application, (ECF No. 1), that Plaintiff qualifies as indigent. Therefore, Plaintiff has satisfied the

first Hodge factor.

In his Second Amended Complaint, Plaintiff asserts claims under 42 U.S.C. § 1983 for

violations under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments. (Compl. at 7.)

Plaintiff’s allegations mainly consist of retaliation and harassment claims stemming from a

previous settlement he won against several Green Haven Correctional Facility correctional

officers. (Id. at 10-11.) Plaintiff alleges the Defendants (1) spread rumors about his sexuality,

racism, and his criminal history in an effort to get other inmates to harass and potentially injure

him; (2) destroyed his belongings and set his cell on fire; (3) sexually assaulted him during a “pat

frisk[]”; (4) beat, pepper sprayed, and stabbed him while he was handcuffed; and (5) wrote false

misbehavior reports. (Id. at 1-7.) Plaintiff also asserts a deliberate indifference to medical needs

claim, as medical staff denied him medical care and prescriptions. (Id. at 7.) Lastly, Plaintiff

asserts failure to act and failure to supervise claims against several Defendants who observed the

abuse or received letters detailing the abuse he was suffering. (Id. at 6-7.) At this stage, the Court

finds Plaintiff’s claims are “likely to be of substance.” Hodge, 802 F.2d at 62; Lombardo v. Goord,

No. 99 Civ. 1676 (JSR)KNF, 1999 WL 983875, at *1 (S.D.N.Y. Oct. 28, 1999) (granting request

for pro bono counsel where the plaintiff’s claims related to an assault and failure to render adequate

medical care had “some chance of success”) (internal citations omitted).

The Court similarly finds that the other Hodge factors weigh in favor of granting Plaintiff’s

application. Plaintiff’s ability to investigate his claims is likely limited due to his incarceration

and potential difficulties surrounding Covid-19 protocols. Additionally, there are over 20

defendants named in this lawsuit, and Plaintiff “seems to have trouble articulating the appropriate

parties, claims, and standards to make out his case.” See Carno v. Correct Care, Inc., 17-cv-7998

(NSR), 2019 U.S. Dist. LEXIS 128613, at *4 (S.D.N.Y. July 31, 2019) (granting request for pro

bono counsel in part because Plaintiff’s claims related to medical and scientific issues). In

response to the Defendants’ motion to dismiss, Plaintiff has submitted two reply motions arguing

against dismissal, totaling a little over two pages. (ECF Nos. 85 & 86.) Additionally, Plaintiff has

filed multiple letters containing allegations of continued harassment and property damage that has

resulted in him losing legal documents and prevented him from having access to legal materials

and resources. (ECF Nos. 64, 65, 74, 75, 83, 84, 87, 91, 92, 93, 94, 95, 99 & 101.) Hence, in this

case, representation would “lead to a quicker and more just result by sharpening the issues and

shaping examination.” Hodge, 802 F.2d at 61.

CONCLUSION

For the foregoing reasons, Plaintiff’s Application for the Court to Request Counsel is

granted. The Court advises Plaintiff that there are no funds to retain counsel in civil cases and the

Court relies on volunteers. Due to a scarcity of volunteer attorneys, a lengthy period of time may

pass before counsel volunteers to represent Plaintiff. Nevertheless, this litigation will progress at

anormal pace. If an attorney volunteers, the attorney will contact Plaintiff directly. There is no

guarantee, however, that a volunteer attorney will decide to take the case, and Plaintiff should be

prepared to proceed with the case pro se. Of course, if an attorney offers to take the case, it is

entirely Plaintiff's decision whether to retain that attorney or not. The Court has established a Pro

Bono Fund to encourage greater attorney representation of pro se litigants. The Fund is especially

intended for attorneys for whom pro bono service is a financial hardship. See

http://www.nysd.circ2.den/docs/prose/pro_bono_fund_order.pdf.

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 IFP status is denied for the purpose of an appeal. See

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

Plaintiff's application for an extension of time is also granted. Plaintiff shall serve his

opposition on or before September 28, 2021 and Defendants shall serve their reply on or before

October 12, 2021. This will be a FINAL extension, except upon good cause shown.

The Clerk of the Court is kindly directed to mail a copy of this Order to pro se Plaintiff and

show proof of service on the docket.

SO ORDERED:

Dated: August 25, 2021

White Plains, New York

NELSONS.ROMAN

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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