United States District Court, W.D. New York
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
This is an action pursuant to 42 U.S.C. § 1983 in which Andre Smith ("Plaintiff"), who was formerly a prison inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), alleges that Defendants were deliberately indifferent to his serious need for dental care, in violation of the Eighth Amendment. The matter is ready for trial. Now before the Court are the following applications: 1) Plaintiff's application (Docket No. [#77] for appointment of pro bono counsel; 2) Plaintiff's application [#80] for an order directing the Los Angeles County Jail to house him during the trial in this action; 3) Plaintiff's application [#81] for a writ of habeas corpus ad testificandum, permitting him to personally attend the trial in this action; 4) Defendants' motion [#82] to enforce a settlement; and 5) Plaintiff's "motion" [#84] in opposition to Defendants' application, which is actually just a response to Defendant's motion [#82], and not an actual motion. All of the applications are denied.
On August 11, 2008, Plaintiff, who has apparently now changed his name to Andre Stuckey, proceeding pro se, commenced this action against several members of the medical staff at DOCCS' Southport Correction Facility ("Southport"). In December 2011, the Court denied, in part, Defendants' motion for partial summary judgment, and ruled that Plaintiff's claims involving the alleged denial of dental care, between May 2007 and July 2008, could proceed to trial. See, Decision and Order (Docket No. [#70]).
Since that time, the action has been ready for trial. In the interim, as discussed more fully below, the Court has been considering various options as to how to conduct the trial, in light of the fact that Plaintiff is now incarcerated in California. In that regard, while this action was pending, in or about October 2009, Plaintiff was released from DOCCS' custody. Shortly thereafter, Plaintiff, who has a very lengthy criminal record, traveled to the State of California, where he committed yet another crime, burglary. Plaintiff was convicted of that crime, and on September 30, 2011, he was sentenced to seventeen years in California's state prison system. Barring a successful appeal or collateral attack, Plaintiff will remain imprisoned in California until 2028.
Presently, Plaintiff is housed at Kern Valley State Prison ("Kern Valley"), in Delano, California, which, according to the website of the California Department of Corrections & Rehabilitation, is a Level IV facility, the highest security level in the California system. The Court has consulted with an official at Kern Valley, who indicates that the prison does not have video-conferencing capability.
The Court has been hopeful that the parties would settle this matter. On this point, Plaintiff and the Office of the New York State Attorney General were recently able to settle two other actions that Plaintiff had pending in this district. However, as discussed below, the parties have not yet reached any agreement to settle this action.
With this general background, the Court will proceed to consider Plaintiff's applications.
Motion to Enforce Settlement
Plaintiff is an experienced pro se litigator. Plaintiff commenced five actions in this Court between 2004 and 2008, while he was in DOCCS' custody.  The first action ended after trial with a jury verdict for defendants, the second was dismissed on defendants' summary judgment motion, two were settled, and the instant action remains pending. Plaintiff has also litigated at least three actions in the U.S. District Court for the Southern District of New York,  and has likely commenced actions in other districts, too.
After the Court denied Defendants' summary judgment motion in part, Plaintiff offered to settle the action for $1, 500.00. Plaintiff repeated that offer in writing, several times. More specifically, Plaintiff initially made the settlement offer on February 4, 2014, in a letter in which he indicated that he would settle the matter for $1, 500.00, and asked Defendants to send him "the necessary stipulation papers." On February 11, 2014, Plaintiff sent Defendants another letter, repeating that offer. On April 19, 2014, the Court conducted a pretrial conference, at which Plaintiff repeated his settlement demand of $1, 500.00. On May 6, 2014, Plaintiff sent another letter to Defendants, reiterating his offer to settle the action for $1, 500.00.
However, although Plaintiff's settlement offer seems to have been eminently reasonable, Defendants inexplicably delayed making any decision about it for seven months. Instead, between June 6, 2014 and July 14, 2014, Defendants' counsel wrote to Plaintiff three times, indicating that Defendants were still considering the settlement offer.
By early August 2014, Plaintiff had apparently become tired of waiting for a response from Defendants, because on August 13, 2014, the Court received a letter from him, indicating in pertinent part:
This case is now ready for trial. The parties' last effort to resolve this case by settlement ha[s] failed. Therefore, I would appreciate it if this Court would schedule a final pre-trial conference so that a trial date can be set.
(undated Stuckey letter, postmarked August 5, 2014) (citation and internal underlining omitted). Defendants' counsel is listed as having been copied on the letter, but he maintains that he never received Plaintiff's letter.
Shortly thereafter, on August 21, 2014, Defendants' counsel sent a letter to Plaintiff, purporting to accept Plaintiff's settlement offer of $1, 500.00, and enclosing a proposed stipulation of settlement. Defendants' counsel's transmittal letter stated, in pertinent part: "Upon the Court's filing of the duly executed Stipulation and Order of Settlement, I will then see that it is forwarded to the appropriate State authorities for processing and payment."
The Court will briefly note a few features of the proposed Stipulation and Order of Settlement, because they are relevant to the analysis below. First, the proposed stipulation states, in pertinent part as follows:
WHEREAS, the parties are interested in resolving all the remaining issues alleged in the complaint of this action, subsequent amended complaint(s) and/or proposed amended complaint(s) in this action and have negotiated in good faith for that purpose;
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IT IS HEREBY STIPULATED AND AGREED by and between the parties... [that] any claims or causes of action... arising out of any of the incidents alleged in the complaint, amended complaint and/or proposed amended complaint(s) are hereby settled for the sum of one thousand five hundred dollars ($1, 500.00).
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Nothing in this So Ordered Stipulation of Settlement shall be constructed [sic] as an admission or concession of liability ...