# Brown v. City of New York

> District Court, S.D. New York · October 5, 2021

URL: https://www.frixlaw.com/law-library/cases/10335734

## Case

- **Court:** District Court, S.D. New York
- **Decided:** October 5, 2021
- **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/10335734

## How later opinions describe it (automated extraction)

- noting that the Court should consider the litigant’s ability to investigate the facts, need for cross- examination, complexity of the issues, and any special reason why appointment of counsel would more likely lead to a just determination

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PAUL BROWN,

Plaintiff,

-v- CIVIL ACTION NO.: 21 Civ. 4632 (PGG) (SLC)

CITY OF NEW YORK, ORDER

Defendant.
SARAH L. CAVE, United States Magistrate Judge:

I. INTRODUCTION
Before the Court are two requests by Plaintiff pro se Paul Brown: (i) a renewed
application for the appointment of pro bono counsel (ECF No. 13 (the “Renewed Application”));
and (ii) a motion to compel defendant the City of New York (the “City”) to produce the “COVID
sheets” and certain “login books” and videos from the Anna M. Kross Center (“AMKC”) on Rikers
Island. (ECF No. 12 (the “Motion”)). For the reasons below, the Renewed Application and the
Motion are both DENIED WITHOUT PREJUDICE.
II. BACKGROUND
A. Factual Background
Mr. Brown is a prisoner at the Orleans Correctional Facility. (ECF No. 14). He brought this
action under 42 U.S.C. § 1983, alleging that the City was deliberately indifferent to his risk of
contracting COVID-19 while he was detained at AMKC. (ECF No. 1 (the “Complaint”) at 4–5).
Specifically, Mr. Brown claims that AMKC staff failed to: (i) enforce social distancing; (ii) provide
COVID-19 testing; (iii) distribute personal protective equipment (“PPE”) to inmates; or (iv)
observe the detainee occupancy limits of 25–30 people (with the number of detainees housed in
his “area” reaching 43 people). (Id. at 4). As an “asthmatic,” Mr. Brown claims that he was
particularly “at risk.” (Id.) In the Motion, Mr. Brown further alleges that he and his fellow inmates
were kept in close proximity, “being forced to be 1ft [] apart by captains and security teams with

threats of movement to housing units more violent with the same conditions.” (ECF No. 12-1 at
1). He seeks $10 million in damages for “the blatant disregard of [his] human rights during a
pandemic.” (ECF Nos. 1 at 5).
B. Procedural Background
On May 21, 2021, Mr. Brown commenced this action against the New York City
Department of Corrections (the “DOC”). (ECF No. 1). That same day, he filed his first application

for the appointment of pro bono counsel (the “First Application”). (ECF No. 2). On June 10, 2021,
Mr. Brown filed a request to proceed in forma pauperis (“IFP”), which the Honorable Laura Taylor
Swain granted on June 11, 2021. (ECF Nos. 4, 6). On June 17, 2021, the Honorable Paul G.
Gardephe1 issued an Order of Service that: (i) dismissed Mr. Brown’s claims against the DOC; (ii)
construed the Complaint as asserting claims against the City; (iii) directed the Clerk of Court to
amend the caption to replace the DOC with the City; and (iv) requested that the City waive service

of summons. (ECF No. 8 at 2–3). Judge Gardephe also denied without prejudice the First
Application, concluding that it was “too early in the proceedings for the Court to assess the merits
of the action[.]” (ECF No. 8 at 3).
On July 15, 2021, the City waived service. (ECF No. 11). That same day, Mr. Brown filed
the Renewed Application and the Motion. (ECF Nos. 12, 13). In Motion, he seeks for an order

1 On June 15, 2021, this case was reassigned from Chief Judge Swain to Judge Gardephe. (See ECF minute
entry, June 15, 2021).
compelling the City to produce: “the COVID sheets,” “login books of the deputies and captions
they lied in,” and “videos from AMKC Rikers Island West 19 Upper-B.” (ECF No. 12 at 1). In the
Renewed Application, Mr. Brown explains that he has “little to no knowledge on how to proceed

without counsel.” (ECF No. 13 at 1). Regarding his prior efforts to find an attorney, Mr. Brown
states that: (i) he is “assigned to work detail from 5am – 8am[;] (ii) the “phone cannot be used
until 3[:]30pm because of inmate programming[;]” (iii) “after [the] programs the phones are all
taken past business hours[;]” and (iv) he “need[s] money to call out.” (Id. at 2).
On September 13, 2021, the City filed its answer to the Complaint. (ECF No. 16). The City

has not opposed or otherwise responded to the Motion.
III. LEGAL STANDARDS
A. Applications for Pro Bono Counsel
Pursuant to Supreme Court and Second Circuit precedent, the Court must liberally
construe pro se pleadings. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Harris v. Mills, 572 F.3d 66,
72 (2d Cir. 2009); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474–75 (2d Cir. 2006).
Litigants unable to pay for counsel do not have a constitutional right to counsel in civil

actions. Davila v. Doar, No. 07 Civ. 5767, 2008 WL 4695004, at *2 (S.D.N.Y. Oct. 22, 2008). Even
if a court does believe that a litigant should have free counsel, under the IFP 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. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 301–310 (1989);
28 U.S.C. § 1915(e)(1); 28 U.S.C.A. § 1915 (“The court may request an attorney to represent any
person unable to afford counsel.”) (emphasis added).
Moreover, for the good of the public and because courts do not have funds to pay counsel
in civil matters, courts must request the services of pro bono counsel sparingly and preserve the
“precious commodity” of volunteer-lawyer time for those litigants whose causes are truly

deserving. Cooper v. A. Sargenti Co., 877 F.2d 170, 172–73 (2d Cir. 1989). The Court may grant
pro bono counsel to a person who cannot afford one if his or her “‘position seems likely to be
one of substance.’” Id. (quoting Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997)).
The Court must consider “the merits of plaintiff’s case, the plaintiff’s ability to pay for
private counsel, [plaintiff’s] efforts to obtain a lawyer, the availability of counsel, and the

plaintiff’s ability to gather the facts and deal with the issues if unassisted by counsel.” Cooper,
877 F.2d at 172 (2d Cir. 1989); see Hodge v. Police Officers, 802 F.2d 58, 60–62 (2d Cir. 1986)
(noting that the Court should consider the litigant’s ability to investigate the facts, need for cross-
examination, complexity of the issues, and any special reason why appointment of counsel would
more likely lead to a just determination). Of these, “[t]he factor which command[s] the most
attention [is] . . . the merits.” Cooper, 877 F.2d at 172. As noted fifteen years ago by Second

Circuit:
Courts do not perform a useful service if they appoint a volunteer lawyer to a case
which a private lawyer would not take if it were brought to his or her attention.
Nor do courts perform a socially justified function when they request the services
of a volunteer lawyer for a meritless case that no lawyer would take were the
plaintiff not indigent.

Cooper, 877 F.2d at 174. Accordingly, the Second Circuit has stated that “counsel is often
unwarranted where the [pro se litigant’s] chances of success are extremely slim, and advised that
a district judge should determine whether the pro se litigant’s position seems likely to be of
substance, or showed some chance of success.” Ferrelli v. River Manor Health Care Ctr., 323 F.3d
196, 204 (2d Cir. 2003) (internal citation omitted). It is important that “[pro se] litigants seeking
appointed counsel [] first pass the test of likely merit.” (Id.) (internal citation omitted). Although
the Court should not appoint counsel “indiscriminately,” a plaintiff need not demonstrate that

her claims would survive a motion to dismiss or for summary judgment, but need only satisfy a
“threshold showing of merit.” Hendricks, 114 F.3d at 393–94.
B. Motions to Compel Discovery
Before a plaintiff may seek judicial intervention in aid of discovery, “(1) Defendants must
answer the complaint, (2) the parties must confer on a discovery plan, (3) Plaintiff must serve
written discovery demands on Defendants, and (4) the parties must make good-faith efforts to

resolve any discovery disputes that may arise.” Rajapakse v. Shaw, No. 20 Civ. 10473, 2021 WL
965326, *2 (S.D.N.Y. Mar. 15, 2021); see Fed. R. Civ. P. 26(d) (setting forth the “Timing and
Sequence of Discovery” and providing that, with limited exceptions, “[a] party may not seek
discovery from any source before the parties have conferred as required by Rule 26(f)”); Fed. R.
Civ. P. 37(a)(1) (providing that a party may not seek an order compelling discovery unless it “has
in good faith conferred or attempted to confer with the person or party failing to make disclosure

or discovery in an effort to obtain it without court action.”); Local Civil Rule 37.2 (setting forth
the proper method of raising discovery disputes in this District).
IV. DISCUSSION
A. The Renewed Application
Based on Chief Judge Swain’s grant of Mr. Brown’s IFP application, the Court concludes
that Mr. Brown is unable to pay for private counsel. (ECF No. 6). The Court also credits Mr.

Brown’s claim that he lacks knowledge of how to proceed with his case. (ECF No. 13 at 1).
The Court cannot, however, conclude that Mr. Brown has made the efforts necessary to
demonstrate that he is “unable to obtain counsel.” Hodge, 802 F.2d at 61. While the Court is
sympathetic to the apparent difficulties he faces in accessing a telephone, Mr. Brown makes no

mention of any specific attempts he has made to retain counsel on his own. (ECF No. 13 at 2).
As a result, he has not yet demonstrated the efforts necessary to justify the Court seeking out a
volunteer attorney on his behalf. See McCray v. Lee, No. 16 Civ. 1730 (KMK), 2020 WL 4229907,
at *3 (S.D.N.Y. July 23, 2020) (“Plaintiff mentions no efforts whatsoever to obtain counsel. This
failure . . . is determinative.”) (internal citation omitted).

Even if Mr. Brown had shown that he was unsuccessful in locating counsel on his own, the
Court cannot conclude at this early stage of the case that he has met the merits threshold or that
this case presents particularly complex issues requiring the appointment of pro bono counsel.
Mr. Brown alleges that the City was deliberately indifferent to his risk of contracting COVID-19
while he was detained at AMKC. (ECF No. 1 at 4–5). Prison conditions can constitute “cruel and
unusual punishment” under the Eighth Amendment to the U.S. Constitution if prison officials

exhibit “deliberate indifference to a substantial risk of serious harm to a prisoner.” Farmer v.
Brennan, 511 U.S. 825, 836 (1994). A “claim for deliberate indifference to serious medical needs
is considered under a two-prong analysis.” Mann v. Daniels, No. 10 Civ. 7540 (PKC) (THK), 2011
WL 2421285, at *3 (S.D.N.Y. June 9, 2011) (citing Farmer, 511 U.S. at 834). “First, the alleged
deprivation of medical care must be, ‘objectively, sufficiently serious.’” Id. (quoting Farmer, 511
U.S. at 834) (internal citation omitted). “[T]wo inquiries determine whether a deprivation is

objectively serious.” Hall v. Dep’t of Corr. Med. Dep’t, No. 18 Civ. 6892 (NSR), 2021 WL 2894646,
at *4 (S.D.N.Y. July 8, 2021). “The first inquiry is whether the prisoner was actually deprived of
adequate medical care.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). “Second, the
objective test asks whether the inadequacy in medical care is sufficiently serious.” Id. at 280.
“The Supreme Court has made clear that whether a particular danger poses a substantial risk of

serious harm in a prison must be evaluated in light of the steps that the facility has already taken
to mitigate the danger.” Harper v. Cuomo, No. 21 Civ. 19 (LEK) (ML), 2021 WL 1821362, at *8
(N.D.N.Y. Mar. 1, 2021) (citing Helling v. McKinney, 509 U.S. 25, 35–36 (1993)). “The second
requirement for an Eighth Amendment violation is subjective: the charged official must act with
a sufficiently culpable state of mind.” Salahuddin, 467 F.3d at 279.

Neither the Complaint nor the Application demonstrate the “threshold showing of merit”
for Mr. Brown’s deliberate indifference claim. Hendricks, 114 F.3d at 393–94. The Court notes
that Mr. Brown filed the Renewed Application less than a month after Judge Gardephe denied
the First Application and before the City had appeared in the case. (ECF Nos. 8, 13, 15). The
Court concludes that it is still “too early in the proceedings . . . to assess the merits of the action”
or whether the appointment of counsel is otherwise warranted. (ECF No. 8 at 3). Accordingly,

the Court denies Mr. Brown’s Renewed Application. Mr. Brown may renew his request for the
appointment of pro bono counsel if he can demonstrate that he has attempted to find counsel
on his own and when the Court is better able to determine whether his claims are likely to be of
substance.
Mr. Brown is advised that he may seek assistance from the New York Legal Assistance
Group (“NYLAG”). Additional information can be found online at nylag.org/pro-se-clinic; by

calling 212-659-6190; or by emailing info@nylag.org. In addition, the United States District Court
for the Southern District of New York has a Pro Se Intake Unit with information to assist
individuals who are representing themselves in the Southern District without the assistance of
an attorney. Additional information can be found online at nysd.uscourts.gov/prose or by calling
at 212-805-0175.
B. The Motion
The Court concludes that Mr. Brown’s Motion to compel discovery is also premature. As
discussed above, before Mr. Brown may seek judicial intervention in aid of discovery, the parties
must confer on a discovery plan, Mr. Brown must serve written discovery demands, and the
parties must make good-faith efforts to resolve any disputes that may arise. Rajapakse, 2021 WL
965326 at *2. To date, it appears that none of these steps have been taken. Accordingly, the
Court denies Mr. Brown’s Motion as premature and without prejudice to renewal at the
appropriate time, when Mr. Brown may be entitled to the discovery he seeks. By separate order,
the Court will schedule an initial case management conference to set a discovery schedule.
V. CONCLUSION
For the reasons stated above, the Renewed Application and the Motion are both DENIED
WITHOUT PREJUDICE. The Clerk of Court is respectfully directed to close ECF Nos. 12 and 13, and
to mail a copy of this Order to Plaintiff at the address below.
Dated: New York, New York SO ORDERED.
October 5, 2021

SABAH L. CAVE
Mail to: United States Magistrate Judge
Paul Brown
DIN: 21R0239
NYSID: 015664572
Orleans Correctional Facility
3531 Gaines Basin Road
Albion, NY 14411-9199

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10335734. Public record. Not legal advice.