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Forten-Lopez-Lancia-Manos v. New York State Office for the Aging

July 19, 2010

MARCELINA N. FORTEN-LOPEZ-LANCIA-MANOS, PLAINTIFF,
v.
NEW YORK STATE OFFICE FOR THE AGING, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; ST. LAWRENCE COUNTY OFFICE FOR THE AGING; NATIONAL COUNCIL ON AGING, INC.; AND NEW YORK STATE OFFICE OF THE STATE COMPTROLLER, DEFENDANTS.



The opinion of the court was delivered by: Lowe, United States Magistrate Judge

REPORT-RECOMMENDATION & ORDER

The Clerk has sent to the Court a complaint, renewed application to proceed in forma pauperis, and renewed motion for counsel submitted by pro se Plaintiff Marcelina N. Forten-Lopez-Lancia-Manos. Dkt. Nos. 1, 3, 6, 7.

I. THE COMPLAINT

A. Defendants New York State Office for the Aging, New York State Department of Corrections, and St. Lawrence County Office for the Aging

Plaintiff alleges that through a job placement program offered by Defendant New York State Office for the Aging, she worked for, inter alia, Defendant New York State Department of Corrections. Dkt. No. 1 at ¶¶ 11-14, 177-180. She states that she was discriminated against by employees of these Defendants based on her national origin and age. Id. at ¶¶ 197-213. She also alleges that she was discriminated against by an employee of Defendant St. Lawrence County Office for the Aging. Id. For a complete statement of Plaintiff's allegations, reference is made to the complaint.

B. Defendants National Council on Aging and New York State Office of the State Comptroller

Plaintiff names the "National Council on Aging" and the "New York State Office of the State Comptroller" as defendants. However, the complaint contains no allegations of wrongdoing against these entities. Therefore, the complaint fails to state a claim on which relief may be granted against these defendants. See 28 U.S.C. § 1915(e)(2)(B)(directing that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that -- . . . (B) the action . . . (ii) fails to state a claim on which relief may be granted).

Moreover, where a defendant is listed in the caption but the body of the complaint fails to indicate what the defendant did to the plaintiff, dismissal is appropriate. Gonzalez v. City of N.Y., No. 97 CIV. 2246, 1998 WL 382055, at *2 (S.D.N.Y. July 9, 1998); see also Crown v. Wagenstein, No. 96 CIV. 3895, 1998 WL 118169, at *1 (S.D.N.Y. Mar. 16, 1998) (mere inclusion of warden's name in complaint insufficient to allege personal involvement); Taylor v. City of N.Y., 953 F. Supp. 95, 99 (S.D.N.Y. 1997) (same). Therefore, the Court recommends dismissal of these two defendants.*fn1

II. APPLICATION TO PROCEED IN FORMA PAUPERIS

Plaintiff filed a renewed application to proceed in forma pauperis. Dkt. No. 6. After a review of the application, Plaintiff may proceed in forma pauperis.

III. MOTION FOR APPOINTMENT OF COUNSEL

Plaintiff filed a renewed motion for appointment of counsel. Dkt. No. 7. Regarding Plaintiff's motion for 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. Among these factors are:

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. ...


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