The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TOMMY LEE BROWN, 98-A-5078,
Plaintiff, DECISION AND ORDER
-vs-
BRIAN FISHER, et al., 15-CV-6108-EAW-MJP
Defendants.
Pedersen, M.J. Tommy Lee Brown, Plaintiff pro se (“Brown”), is an inmate at
Five Points Correctional facility and is requesting the assistance of pro bono counsel in
this civil rights litigation.
The docket has a First Amended Complaint (“Compl.”) filed by Jon P. Getz, Esq.,1
on July 11, 2017 (ECF No. 32), and Defendants have filed answers to that complaint.
Defendants have moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), which is
pending before the District Judge, as well as Brown’s request for injunctive relief. (Motion
to Dismiss, Jul. 2, 2019, ECF No. 80; Letter Motion for Restraining Order, May 23, 2019,
ECF No. 72.)
Brown’s raises fourteen claims for relief, and asks for punitive damages. He is
suing 60 defendants, some of which are named as John Doe. The complaint outlines,
three separate incidents in three separate locations all of which he [sic]
suffered substantial injuries that required medical attention. Correction
Officers ignored his complaints of pain subsequent to his assaults; and
retaliated against him as he has filed grievances against correction officers
and others; and after he has been successful in having disciplinary matters
reversed against him.
1 Mr. Getz was appointed by the Court for the limited purpose of drafting an amended
complaint and no longer represents Brown.
(Compl. ¶ 8.) At the time of the complaint, Brown was housed in the Central New York
Psychiatric Center. (Id. ¶ 10.)2
With one application for the appointment of counsel (ECF No. 86), Brown enclosed
letters from six lawyers turning down the opportunity to represent him in this case, along
with a “Verified Amended Complaint.” (ECF No. 86-1.) In his second application for pro
bono counsel, Brown included an affidavit in which he explained that he is “a layman
whom [sic] is suffering from serious mental illness with no knowledge of the laws …” and
claims that his mental condition makes it problematic for him to understand and
comprehend any legal standards and instructions. (ECF No. 87.) Included in the second
application is a memorandum from an unnamed individual who is evidently assisting
Brown with preparation of his papers in opposition to the motion to dismiss. (ECF No. 87
at 9.) On November 8, 2019, after receiving extensions of time to do so, Brown filed his
response to the motion to dismiss. (Reply to Defendants 12(b)6 and 12(c) Notice of Motion
and Memorandum of Law, Nov. 8, 2019, ECF No. 98.) Brown’s response cites the
standard of review for a motion to dismiss,3 contains citations to current case law, asks
for leave to amend the First Amended Complaint, outlines the operative facts from the
current complaint, and makes several cogent arguments against dismissal.
The Hon. Elizabeth Wolford outlined the standard for assignment of pro bono
counsel. (Order Granting Motion to Appoint Counsel, Feb. 22, 2017, ECF No. 23.) “In
deciding whether to appoint counsel, … the district judge should first determine whether
2 According to the docket, he is presently housed in Sullivan Correctional Facility.
3 On page 5, however, the memorandum makes a passing reference to the overruled Conley
standard (Conley v. Gibson, 355 U.S. 41 (1957)) while quoting language from Haines v Kerner, 404
U.S. 519, 521 (1972).
the indigent’s position seems likely to be of substance,” and “[i]f the claim meets this
threshold requirement, the court must then consider” a number of other factors in
making its determination. Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). Judge
Wolford has already found that Brown’s position seems likely to be of substance. Under
Hodge:
If the claim meets this threshold requirement, the court should then
consider 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. at 61-62.
At this stage in the litigation, Brown has shown an ability to adequately represent
himself in opposing the pending motion to dismiss. Depending on the outcome of that
motion, he may need assistance investigating any claims that remain in the litigation, as
well as assistance with cross-examination.
For the time being, however, considering the sacristy of pro bono counsel, and the
thoroughness with which Brown has represented himself on the motion to dismiss, the
Court denies his application for the assignment of pro bono counsel. Brown’s motions,
ECF No. 86 and ECF No. 87, are denied. This denial is without prejudice to renewal
should Brown continue to be involved in suing three facilities and 60 defendants after
the District Judge’s decision on the motion to dismiss.
IT IS SO ORDERED. Wath drone —_
MARK W. PEDERSEN
Dated: January 26, 2019 UNITED STATES MAGISTRATE JUDGE
Rochester, New York
-3-