The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BRIAN E. SCHMIEGE,
Plaintiff,
21-CV-418-LJV
v. ORDER
THE STATE OF NEW YORK, et al.,
Defendants.
On March 22, 2021, the pro se plaintiff, Brian E. Schmiege, filed a complaint
alleging that the defendants violated the Americans with Disabilities Act of 1990 (the
“ADA”) and his constitutional rights. Docket Item 1. This Court previously granted
Schmiege’s request to proceed in forma pauperis (that is, as a person who should have
the prepayment of the ordinary filing fee waived because he cannot afford it) and
screened his complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a). Docket Item 7.
In its screening order, this Court found that Schmiege’s ADA claims against
defendants Joey Clinton, Sean White, and David Williams; his unconstitutional-
conditions-of-confinement claims against defendants White, Rodney Burns, Troy Emke,
Andrew Snyder, and Elisabeth Couch; and his retaliation claim against Couch were
sufficient to proceed to service and gave Schmiege leave to amend some of his other
claims. Id. In a letter dated July 20, 2021, Schmiege alerted the Court that he did not
intend to amend his complaint. Docket Item 8 at 1.
In that same letter, Schmiege asked for this Court’s assistance with certain
requests he has made under New York’s Freedom of Information Law (“FOIL”). Id. at
1-2.1 This Court construes that part of Schmiege’s letter as a motion to conduct
discovery under Federal Rule of Civil Procedure 26 and denies that motion as
premature.
“Local Rule of Civil Procedure 26(b) provides that ‘[s]ubject to the requirements
of Fed. R. Civ. P. 26(a)(1), a party may not seek discovery from any source prior to the
Rule 26(f) conference, absent the parties’ agreement or a Court order setting a
discovery schedule.’” Micolo v. Fuller, 2016 WL 158591, at *2 (W.D.N.Y. Jan. 13,
2016). The defendants will be served shortly, and Schmiege then will have the
opportunity to participate in discovery. Therefore, his request for a discovery order is
denied without prejudice.
Schmiege’s letter also asked the Court to appoint counsel for him. Docket Item
8 at 2. In deciding whether to appoint counsel, courts first assess the indigent plaintiff’s
likelihood of success on the merits of his claim. See Hodge v. Police Officers, 802 F.2d
58, 61 (2d Cir. 1986). If the claim meets this threshold requirement, courts consider a
number of other factors, including “the nature of the factual issues the claim presents[,]
. . . the plaintiff’s apparent ability to present the case[,] . . . whether appointment of
counsel would lead to a quicker and more just result by sharpening the issues and
shaping examination[,] . . . [and the plaintiff’s] efforts to obtain counsel.” Id.
This action was commenced only recently, and the defendants have not yet
answered the allegations in the complaint. The only facts upon which this Court may
1 If Schmiege wishes to bring a claim for the denial of his FOIL requests, that
claim is not cognizable in this section 1983 case. The appropriate vehicle for
challenging denials of access to freedom of information requests is a state court Article
78 proceeding. Schuloff v. Fields, 950 F. Supp 66, 67-68 (E.D.N.Y. 1997); see also
Blount v. Brown, 2010 WL 1945858, at *2 (E.D.N.Y. May 11, 2010) (collecting cases).
base its decision as to whether this lawsuit is of substance are Schmiege’s allegations.
At this stage, the Court lacks sufficient information to consider the factors stated in
Hodge. Schmiege’s request for appointment of counsel therefore is denied without
prejudice as premature.
ORDER
In light of the above, it is HEREBY
ORDERED that Schmiege’s motion for discovery, Docket Item 8, is denied
without prejudice as premature; and it is further
ORDERED that Schmiege’s request for the appointment of counsel, Docket Item
8, is denied without prejudice as premature; and it is further
ORDERED that Schmiege’s claims against the State of New York and the
Commissioner, as well as his inadequate-medical-care claims against White, Williams,
and Clinton, are dismissed, and the Clerk of the Court shall terminate the State of New
York and the Commissioner as defendants in this action; and it is further
ORDERED that the Clerk of the Court shall cause the United States Marshal to
serve copies of the summons, the complaint, this Court’s prior order, Docket Item 7, and
this order upon defendants Clinton, White, Williams, Burns, Emke, Snyder, and Couch
without the plaintiff’s payment therefor, unpaid fees to be recoverable if this action
terminates by monetary award in the plaintiff’s favor; and it is further
ORDERED that the Clerk of the Court shall forward a copy of this order by email
to Michael Russo, Assistant Attorney General in Charge, Buffalo Regional Office, at
Michael.Russo@ag.ny.gov; and it is further
ORDERED that once served, the defendants shall answer the complaint or
respond under 42 U.S.C. § 1997e(g); and it is further
ORDERED that Schmiege shall notify the Court in writing if his address changes.
The Court may dismiss the action if Schmiege fails to do so.
SO ORDERED.
Dated: August 9, 2021
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE