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Flemming v. Wurzberger

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. ยง 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 ...


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