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Shapard v. Attea

November 19, 2009


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



Pursuant to 42 U.S.C. § 1983, the Plaintiff, a former inmate in the New York State Department of Correctional Services ("DOCS") at Wende Correctional Facility ("Wende"), is suing the following current or former DOCS employees: Corrections Officer Robert Kyle ("Kyle"), Corrections Officer John Attea ("Attea"), Corrections Officer Edwin Mendez ("Mendez"), Hearing Officer Thomas Schoellkopf ("Schoellkopf"), Director of Special Housing and Inmate Discipline Donald Selsky ("Selsky"), Lieutenant Al Herdzik ("Herdzik"), Superintendent Anthony Zon ("Zon"), Captain Martin Kearney ("Kearney") and Superintendent Robert Kirkpatrick ("Kirkpatrick").

Plaintiff is proceeding pro se and has been granted leave to proceed in forma pauperis. Now before the Court is the Plaintiff's Motion to Appoint Counsel. [#21] For the reasons stated below, the application is denied.


On May 16, 2005, Plaintiff was an inmate at Wende, where all Defendants except Selsky were employed. On that date, Plaintiff was confined to the Special Housing Unit ("SHU"), where he witnessed Kyle, Mendez, and Attea extract a hearing-disabled inmate from his cell. Plaintiff verbally intervened in the extraction, leading to a verbal exchange between himself and the officers. On or about May 16, 2005, Plaintiff filed a harassment complaint with the Inmate Grievance Record Coordinator, citing the exchange and claiming to have been threatened with harm by Herdzik and Attea.

On May 27, 2005, Plaintiff was released from SHU and assigned to the B-Block housing unit of Wende, where he was under the supervision of Kyle, Mendez, Attea and Herdzik. Prior to this transfer, Plaintiff asked Zon, Kearney and Kirkpatrick to place him in a different housing unit, since he feared retaliation. These requests were denied.

On June 7, 2005, Plaintiff alleges that Attea, Mendez and Kyle attacked him without provocation. Plaintiff suffered a concussion, as well as several contusions and lacerations. On June 7, 2005, Plaintiff filed a complaint with defendant Zon regarding the incident, claiming that the three officers had attacked him.

On June 8, 2005, Plaintiff received a misbehavior report, charging him with assault on staff and refusing a direct order. Plaintiff was also criminally charged with assault. With respect to the misbehavior report, Plaintiff attended a Tier III disciplinary hearing conducted by Schoellkopf, who assisted Plaintiff in his collection of documents and witness testimony, after Plaintiff complained about the inferior service provided by his assigned employee assistant. Schoellkopf found Plaintiff guilty and sentenced him to two years in SHU, as well as two years loss of privileges and good time credit. This decision was subsequently upheld on appeal by defendant Selsky, though he reduced the sentence to one year in each category. Eventually, though, the Commissioner of DOCS reversed the finding and expunged Plaintiff's record. However, Plaintiff pled guilty to the criminal charge of Assault Second Degree and was sentenced, as a persistent felony offender, to a prison term of fifteen years to life.

In this subject action, Plaintiff claims that Kyle, Attea and Mendez used excessive force against him; that Kyle, Attea, Mendez and Herdzik retaliated against him; that Schoellkopf and Selsky violated his due process rights in connection with the disciplinary hearing; and that Zon, Kearney and Kirkpatrick failed to prevent the assault by Kyle, Attea and Mendez. However, in a Decision and Order dated November 16, 2009, this Court granted the applications of Defendants, Herdzik, Kirkpatrick, Zon, and Kearney to dismiss the failure to protect and retaliation claims.


Plaintiff has filed a motion for appointment of counsel pursuant to 28 U.S.C.A. § 1915(d), which grants district courts the discretion to assign counsel to represent indigents in appropriate cases. District Courts have broad discretion in the matter. Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988).

Denying a request for counsel will constitute an abuse of discretion only if it "would result in fundamental unfairness infringing on due process rights." McNeil v. Lowney, 831 F.2d 1368, 1371 (7th Cir.), cert. denied, 485 U.S. 965, 108 S.Ct. 1236, 99 L.Ed.2d 435 (1987). With respect to the appointment of counsel, the court just keep in mind that "every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir.1989)2001). In deciding whether to grant an application for the appointment of counsel ... the district judge should first determine whether the indigent's position seems likely to be of substance. 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 ...

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