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Alvarez v. Goord

March 12, 2009

ORLANDO B. ALVAREZ, PLAINTIFF,
v.
COMMISSIONER GLENN S. GOORD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

On or about November 22, 2005, plaintiff filed a pro se complaint pursuant to 42 U.S.C. § 1983. Dkt. #1. Pursuant to 28 U.S.C. § 636(c), the parties consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. #16. On or about December 12, 2007, defendants filed a motion for summary judgment. Dkt. #26. Plaintiff did not submit a response to defendants' motion for summary judgment. On or about May 2, 2008, plaintiff submitted a letter (dated March 3, 2008) to the undersigned requesting to withdraw his petition (complaint) stating, "[a]t this time I will withdarw [sic] my pertition [sic] in this matter due to the fact that I did not write the Superintendent of Elmira Correctional Facility or Central Office Review Committee [sic] to inform them of my situation concerning my grievance in not doing so I fail [sic] to exhaust my administrative remedies." Dkt. #39. On May 8, 2008, this Court issued an Order in accordance with plaintiff's letter request withdrawing plaintiff's complaint without prejudice pursuant to Fed.R.Civ.P. 41(a)(2) and directing the Clerk of Court to take the necessary steps to close the file. Dkt. #40.

Thereafter, on or about January 29, 2009, plaintiff sent a letter to the undersigned requesting that the complaint be reinstated. Dkt. #41. Plaintiff's letter seeking reinstatement of the complaint states in pertinent part, "[a]fter carefully researching and looking in to [sic] this matter, I ask the Court's [sic] to reinstate this complaint." Dkt. #41. On February 11, 2009, this Court issued an order acknowledging receipt of plaintiff's letter and advising plaintiff that the letter was insufficient and did not constitute a proper motion seeking reinstatement of the complaint. Dkt. #42. The Court further ordered that plaintiff shall file a motion together with a supporting affidavit and memorandum of law setting forth the factual and legal basis for the relief sought by March 9, 2009. Dkt. #42.

On March 3, 2009, plaintiff filed a motion together with an affidavit seeking an Order reinstating the complaint and to have counsel appointed for him. Dkt. ##43 and 44. In his motion, plaintiff states that the reason that he sought to withdraw his complaint was because of his vision problem. Dkt. #44. Moreover, plaintiff further states that his condition has continued to deteriorate and that he needs counsel to assist him because his vision is "not clear enough to correctly advance this complaint." Dkt. #44, p.2.

Rule 60(b) of the Federal Rules of Civil Procedure provides for relief from a final judgment, order, or proceeding for the following six enumerated reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed.R.Civ.P. 60(b). In the instant case, plaintiff's March 3, 2008 letter request to withdraw his complaint states that plaintiff believed that he had failed to exhaust his administrative remedies. Dkt. #39. Plaintiff's initial January 29, 2009 letter request to the undersigned to have the complaint reinstated states that plaintiff had carefully researched and looked into the matter before seeking the relief from the Court. Dkt. #41. Plaintiff's formal motion requesting an Order reinstating the complaint suggests that the reason plaintiff sought to withdraw the complaint was based on his vision problems. Regardless of the factual underpinning for plaintiff's requests to withdraw the complaint and to reinstate the complaint, this Court finds that there is a meritorious basis to afford plaintiff the relief he seeks pursuant to either Fed.R.Civ.P. 60(b)(1) or 60(b)(6). Accordingly, plaintiff's complaint is hereby reinstated.

There is no constitutional right to appointed counsel in civil cases. However, under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants. See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). Assignment of counsel in this matter is clearly within the judge's discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. ...


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