The opinion of the court was delivered by: Gary L. Sharpe United States District Judge
Presently before the court*fn1 is defendant Kevin Provost's motion for summary judgment pursuant to FED. R. CIV. P. 56. (Dkt. No. 109). Plaintiff initially requested an extension of time to file a response to the motion, but instead has filed a motion for appointment of counsel. (Dkt. Nos. 112, 113).
For the following reasons, this court will deny plaintiff's motion for appointment of counsel and grant defendant's motion for summary judgment.
This case has an unfortunate and tortured background, beginning with the filing of plaintiff's original complaint in 1996. Th essence of this case is plaintiff's claim that someone violated his constitutional right to access to courts when that person damaged or destroyed legal materials sent to plaintiff through the mail. The documents were later returned to the sender in "damaged" condition.*fn2 In a Report-Recommendation, dated October 24, 2005, Magistrate Judge Gustave J. Di Bianco outlined the procedural path that this case had taken from the beginning. (Dkt. No. 88).*fn3
Without repeating all of the facts, this court notes that on March 15, 2000, the Honorable Lawrence E. Kahn granted summary judgment in favor of then-defendants Burke and R. Provost, dismissing the case in its entirety. (Dkt. No. 43). Defendant Burke won dismissal based upon the ground that, as a supervisory official, he was not personally involved in the mail incident, and plaintiff's claims regarding an insufficient investigation of the incident did not state a claim. Defendant R. Provost argued that he was not the individual who signed the return receipt for plaintiff's mail and could not have been involved in the incident of which plaintiff complained.
On August 24, 2001, the Second Circuit affirmed the dismissal as against defendant Burke, but vacated Judge Kahn's order and remanded case so that plaintiff could have an opportunity to engage in discovery to identify the person who signed the return receipt for plaintiff's package and under what circumstances it was signed. (Dkt. No. 47). The Second Circuit also directed that plaintiff be afforded an opportunity to amend his complaint against the person ultimately identified. Id.
Through discovery, plaintiff obtained documents appearing to show that the person who signed the return receipt was in reality "K. Provost." (Dkt. No. 54, Exs. A-C). Plaintiff amended his complaint to allege his denial of access to courts claim against "K." Provost, and the court accepted the amended complaint for filing on July 16, 2002. (Dkt. Nos. 55, 57). The United States Marshal was directed to effect service of process on the new defendant. (Dkt. No. 57).
On April 1, 2004, service of the summons and the amended complaint was acknowledged by "K. Provost." (Dkt. No. 71). An answer to the amended complaint was filed in May of 2004, in which the defendant stated that his name was "Keith Provost." (Dkt. No. 72). Plaintiff was deposed on November 30, 2004. (Dkt. No. 82, Exs.). On March 30, 2005, defendant Keith Provost filed a motion for summary judgment, stating that he was not the individual who signed the return receipt for plaintiff's mail in 1994, that he was not in any way involved in the incident of which plaintiff complained, and that he was not the proper defendant.
In support of the motion, Keith Provost submitted employment records showing that he could not have been involved in the alleged mail incident, because on the day that the return receipt was signed, Keith Provost was working at Franklin Correctional Facility, not at Clinton Correctional Facility where plaintiff was incarcerated. (Dkt. No. 82, Decl. of Keith Provost).
Although realizing that once again, the incorrect defendant had been served, Magistrate Judge Di Bianco recommended denying the summary judgment motion without prejudice, because although neither of the defendants were ever assigned to the law library at Clinton Correctional Facility, the Second Circuit stated that the case had to remain pending against the "current" defendant in order to afford plaintiff a full and complete opportunity to identify and find the intended defendant.
Magistrate Judge Di Bianco also appointed the law firm of Mackenzie Hughes for the limited purpose of assisting plaintiff in conducting additional discovery and ensuring service upon the proper defendant. (Dkt. No. 89 at 7). Finally, on May 17, 2007, the summons and amended complaint were served on "Kevin Provost." (Dkt. No. 103). Kevin Provost answered the amended complaint on May 22, 2007. (Dkt. No. 104).
On July 3, 2007, plaintiff requested that he be able to engage in discovery against the new defendant "with the possibility of amending [his] complaint," and Magistrate Judge Di Bianco ordered the parties to advise the court in writing, no later than September 15, 2007, whether they sought further discovery and if so, what that discovery would be,*fn4 staying all proceedings pending further order. (Dkt. No. 106). It does not appear that either party requested further discovery by the court's deadline. On November 28, 2007, Magistrate Judge Di Bianco ordered discovery closed, lifted the stay, and set a deadline for dispositive motions of January 31, 2008. (Dkt. No. 107). Defendant's motion for summary judgment was filed on January 31, 2008. (Dkt. No. 109).
2. Motion for Appointment of Counsel
The court will first consider plaintiff's motion for appointment of counsel. (Dkt. No. 113). Plaintiff's application for counsel indicates that plaintiff has been unsuccessful in his efforts to obtain pro bono counsel on his own. Thus, this Court may properly consider the present request.
Courts cannot utilize a bright-line test in determining whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a number of factors must be carefully considered by the court in ruling upon such a motion. As a threshold matter, the court should ascertain whether the indigent's claims seem likely to be of substance. If so, 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.
Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)). This is not to say that all, or indeed any, of these factors are controlling in a particular case. Rather, each case must be decided on its own facts. Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995)(McAvoy, C.J.)(citing Hodge, 802 F.2d at 61).
On July 7, 2004, Magistrate Judge Di Bianco analyzed the above factors and denied plaintiff's motion for appointment of counsel without prejudice. (Dkt. No. 74). Magistrate Judge Di Bianco later assigned counsel in this case for the limited purpose of assisting plaintiff to identify and serve the individual that signed the return receipt for plaintiff's mail. (Dkt. No. 88). The limited assignment was terminated after counsel completed the purpose of the assignment. (Dkt. No. 102). After reviewing the entire file, this court finds that appointment of counsel at this time is not warranted under the Hodge standard, appointment of counsel is denied, and the court will proceed to consider defendant's motion for summary judgment.
For clarity, this court will briefly review the facts of this case. In the amended complaint, plaintiff alleges that on June 23, 1994, his mother sent him a package of legal materials, consisting of trial transcripts, pre-trial motion papers, an appellate brief, and post-trial motion papers. Amended Complaint (AC) at ¶ 6. (Dkt. No. 56). Plaintiff alleges that he needed these documents in order to pursue ...