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Flemming v. Wurzberger

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


July 15, 2010

WOODROW FLEMMING, PLAINTIFF,
v.
BEZALEL WURZBERGER; TIMOTHY (DNH)(ATB) KEMP; AND LOUISE TICHENOR, DEFENDANTS.

The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

I. Background

Plaintiff Woodrow Flemming, appearing pro se, commenced this action in 2005 in the Western District of New York pursuant to 42 U.S.C. § 1983. Dkt. No. 1. Plaintiff's first amended complaint, which was addressed by the Western District, alleged that defendants were deliberately indifferent to plaintiff's serious medical needs. Dkt. No. 4. Defendants moved for summary judgment in the Western District. Dkt. No. 30. Plaintiff cross-moved for summary judgment. Dkt. No. 37. In reviewing plaintiff's cross-motion, the Western District noted that plaintiff was attempting to raise new claims by way of his cross-motion, including claims of retaliation, equal protection, and violation of his due process rights. Dkt. No. 38 at 7. The Western District dismissed the first amended complaint in its entirety, finding that the amended complaint failed to state a medical care claim against any of the defendants; dismissed the purported new claims raised in plaintiff's cross-motion for summary judgment;*fn1 and entered judgment in favor of the defendants. Dkt. Nos. 38, 39.

Plaintiff appealed the dismissal of the action to the Second Circuit Court of Appeals. Dkt. No. 40. The Second Circuit appointed plaintiff counsel on appeal. By Order filed April 16, 2009, the Second Circuit vacated that portion of the judgment entered by the Western District of New York which dismissed plaintiff's due process and retaliation claims against defendants Wurzberger, Kemp, and Tichenor and remanded the action to the Western District with instructions to "enter judgment dismissing [the due process and retaliation] claims without prejudice to the filing of an amended complaint asserting the due process and retaliation claims against these Defendants." Dkt. No. 43.

After the action was remanded to the Western District, plaintiff filed a second amended complaint. Dkt. No. 46. Defendants filed a motion to dismiss the second amended complaint for improper venue, or in the alternative, asked to transfer venue of the action to the Northern District of New York. Dkt. No. 50. The Western District granted defendants' request to transfer venue and transferred the action to this District for further proceedings. Dkt. No. 55. While the defendants' motion to transfer was pending, plaintiff filed a "Motion for Summary Judgment" and a "Supplemental Motion and Cross Motion for Summary Judgment." Dkt. Nos. 52, 53. Defendants have responded in opposition to the motions. Dkt. No. 60.

Reading plaintiff's second amended complaint liberally, plaintiff alleges that defendants Wurzberger, Kemp, and Tichenor violated plaintiff's constitutional rights when they retaliated against him for filing complaints; conspired to deny plaintiff due process and to have him transferred from a medical facility to a special housing unit; subjected plaintiff to cruel and unusual punishment; and denied him proper medical care, in deliberate indifference to his serious medical needs. Dkt. No. 46.

Currently before the Court are plaintiff's motions for appointment of counsel and his motions*fn2 for summary judgment. Dkt. Nos. 52, 53, 80. Although not entirely clear, it also appears that plaintiff is seeking the Court's assistance in resolving certain discovery issues. See Dkt. No. 80 at 1-3 and 6-12.

II. Appointment of Counsel

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:

[t]he 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).

While the Court is cognizant of the fact that the Second Circuit suggested that it "might be desirable" for the District Court to appoint plaintiff counsel, the Circuit nevertheless left the decision of whether to appoint counsel to the District Court. Dkt. No. 43 at 4. At this juncture the Court finds that appointment of counsel is unwarranted for several reasons. First, the second amended complaint is not the pleading that was before the Second Circuit on appeal but is a new pleading incorporating plaintiff's additional claims that defendants denied him due process and retaliated against him.*fn3

Second, in reviewing the second amended complaint, the Court finds that neither the facts nor the legal issues involved in this case are so complex as to warrant appointment of counsel at this time.

In fact, it appears to the Court that plaintiff has the threshold ability to articulate his claims and to argue his positions, and his submissions in this matter demonstrate that he has been able to communicate effectively with the Court. For example, plaintiff was able to submit his second amended complaint as instructed by the Second Circuit. He also appears to be participating in the discovery phase of this action, as evidenced by the present submission, which also raises several discovery disputes. See Section III, below. In addition, plaintiff submitted argument in opposition to the transfer and in support of his own motion for summary judgment. Dkt. No. 53. While it is possible that there will be conflicting evidence implicating the need for cross-examination at the time of the trial of this matter, as is the case in many actions brought under 42 U.S.C. § 1983 by pro se litigants, "this factor alone is not determinative of a motion for appointment of counsel." Velasquez, 899 F. Supp. at 974. Third, resources available for pro bono counsel are very limited, and would be better utilized during a later phase of this action. Fourth, this Court is unaware of any special reason why appointment of counsel at this time would be more likely to lead to a just determination of this litigation. While plaintiff argues that his medical issues will limit his ability to prosecute this action, this alone does not entitle him to appointment of counsel. Countless inmates face the same obstacles that plaintiff references and still manage to prosecute their actions effectively.*fn4 Finally, it is likely that this Court will appoint trial counsel at the final pretrial conference, should this case survive the filing of any dispositive motions.

The Court therefore finds that, based upon the existing record in this case, appointment of counsel is unwarranted at the present time.*fn5 Plaintiff may only file another motion for appointment of counsel in the event he can demonstrate that, in light of specific changed circumstances, consideration of the above factors warrants the granting of such an application.

III. Summary Judgment

Plaintiff moved for "summary judgment" in the Western District of New York. In support of his motion, he submitted a substantial number of documents. (Dkt. Nos. 52, 53). The motion was transferred to the Northern District of New York after Judge Larimer determined that venue was not proper in the Western District. Defendants have responded in opposition to the motion, arguing that plaintiff moved for summary judgment before defendants had an opportunity to answer the second amended complaint and before defendants were able to take plaintiff's deposition. (Dkt. No. 60). Defendants argue, pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, that summary judgment is premature, and that defendants need further discovery before being able to properly defend the motion. (Dkt. No. 60-1 at pp. 6-11).

Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. FED. R. CIV. P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). The burden is on the moving party to establish the absence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Rule 56(f) of the Federal Rules of Civil Procedure, as interpreted by the courts, provides "that when a party facing an adversary's motion for summary judgment reasonably advises the court that it needs discovery to be able to present facts needed to defend the motion, the court should defer decision of the motion until the party has had the opportunity to take discovery and rebut the motion." Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 386 (2d Cir.2001) (citations omitted).

The Mandatory Pretrial Scheduling Order in this case was issued on February 18, 2010. Dkt. No. 74. As part of his motion for appointment of counsel, plaintiff appears to allege that defendants have failed to comply with mandatory disclosure and/or to fully respond to plaintiff's interrogatories and other discovery requests.*fn6 Dkt. No. 80 at 1-3 and 6-12. Thus, plaintiff also appears to believe that discovery is still ongoing, and that he needs further discovery from defendants. On April 16, 2010, defendants filed a status report regarding mandatory disclosures, noting that they sent plaintiff 978 pages of his medical records. Dkt. No. 79. On June 3, 2010, this court granted defendants an extension of time for discovery and motions. Dkt. No. 82.

On July 8, 2010, plaintiff filed a letter, stating that he has now been deposed by defendants and has no objection to the extension granted by the court; but he wants the court to consider his summary judgment motion.*fn7 Dkt. No. 87. A review of plaintiff's motion for summary judgment shows that he cites the elements of medical care and due process claims, but never specifically states how the defendants' conduct met these standards. He states that the defendants have violated "the law"*fn8 without substantiating these allegations. Plaintiff does not specify the issues upon which he is requesting summary judgment, nor does he specify which defendants are responsible for the various alleged violations. Plaintiff makes some conclusory statements about defendants' conduct in general, and has attached a myriad of documents allegedly in support of the motion. He has attached various medical records to his motion, without indicating how these records show that any of the defendants were deliberately indifferent to plaintiff's serious medical needs. Plaintiff's papers do not eliminate issues of fact in this case. Discovery is not yet closed, plaintiff has now been deposed, and has been provided additional documents since he filed his summary judgment motion. Accordingly, this court will recommend denying plaintiff's motion without prejudice to refiling after the close of discovery.

IV. Discovery Issues

As stated above, plaintiff seems to be complaining that defendants have not provided him appropriate responses to his requests for discovery. Without the benefit of a response from the defendants, the Court is not able to adequately address the alleged discovery disputes. Therefore, the Clerk of the Court is directed to file a copy of plaintiff's motion for appointment of counsel (Dkt. No. 80) as a motion to compel discovery and direct defendants to respond to the newly docketed motion in accordance with the Local Rules of Practice of this District.

WHEREFORE, it is hereby

ORDERED that plaintiff's motion for appointment of counsel (Dkt. No. 80) is DENIED without prejudice to renew at some future time upon a showing of specific changed circumstances; and it is further

ORDERED that the Clerk shall file a copy of plaintiff's motion for appointment of counsel (Dkt. No. 80) as a motion to compel discovery and direct defendants to respond to the newly docketed motion to compel by Monday, July 26, 2010, and it is further

ORDERED, that discovery deadline is extended until Friday, August 9, 2010 for the purpose of resolving this outstanding discovery issue. Upon receipt of defendants' response, the Clerk shall forward this file to the Court for further review; and it is

RECOMMENDED, that plaintiff's motions for summary judgment (Dkt. Nos. 52, 53) be DENIED WITHOUT PREJUDICE, and it is

ORDERED, that the Clerk serve a copy of this Decision and Order on the parties in accordance with the Local Rules.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.


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