United States District Court, W.D. New York
REPORT & RECOMMENDATION AND DECISION & ORDER
HUGH B. SCOTT, Magistrate Judge.
There are various motions pending before the Court in this case, including the plaintiff's motion for summary judgment (Docket No. 37), the defendant's motion to stay summary judgment (Docket No. 39), the plaintiff's motions to appoint counsel (Docket No. 44 and 50), and the plaintiff's motion to amend. (Docket No. 55).
The plaintiff, Terence Sandy McCray ("McCray") commenced this action in the Northern District of New York against numerous defendants including the City of Albany, various prosecutors, probation officers, police officers, as well as corrections officers Jenkins, Ayers, Roshia, Callieri and Fischer employed by the New York State Department of Corrections and Community Supervision ("DOCCS"). (Docket No. 1). The plaintiff claimed that he had been wrongfully convicted and asserted various civil rights and negligence claims. (Docket No. 1 at pages 10-14). The plaintiff then filed an Amended Complaint (Docket No. 23). The Amended Complaint named the same defendants but included more allegations and set forth claims of false arrest (Docket No. 23, page 10), intentional infliction of emotional distress (Docket No. 23, pages 10 and 69), abuse of process (Docket No. 23, pages 12 and 73), negligence (Docket No. 23, page 12), negligent misrepresentation (Docket No. 23, pages 14 and 77), denial of due process (Docket No. 23, pages 14, 78 and 83), violation of "Monell/42 U.S.C. §1983" against the City of Albany (Docket No. 23, pages 14, 86 and 90), negligent hiring (Docket No. 23, pages 14 and 98), sexual assault relating to a pat frisk (Docket No. 23 at page 65), fraud (Docket No. 23, page 74), and cruel and unusual punishment in violation of the Eighth Amendment (Docket No. 23 at page 99).
District Judge Glenn Suddaby of the Northern District of New York severed the claims as asserted against the DOCCS corrections officers and transferred those claims to this Court. (Docket No. 26). Upon initial review in the Western District of New York, District Judge Michael A. Telesca dismissed all of the plaintiff's claims against Fischer, Jenkins and Callieri. (Docket No. 28 at page 11). The Court directed that the Amended Complaint be served only upon defendants Ayers and Roshia regarding the sole remaining pat-frisk/sexual assault claim. (Docket No. 28 at page 11). With respect to this claim, the plaintiff asserts that his genitals were grabbed and squeezed during a purported pat frisk, and subsequently, that defendant Rosia placed his fingers into the plaintiff's anus. (Docket No. 23 at pages 68-69).
Motion for Summary Judgment
The plaintiff has filed a motion for summary judgment with respect to his sexual assault claim. (Docket No. 37).
Summary judgment is appropriate where there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law. See Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2nd Cir. 1992) citing Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The non-moving party must, "demonstrate to the court the existence of a genuine issue of material fact." Lendino v. Trans Union Credit Information, Co., 970 F.2d 1110, 1112 (2nd Cir. 1992), citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A fact is material:
when its resolution would "affect the outcome of the suit under the governing law" and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party."
General Electric Co. v. New York State Department of Labor, 936 F.2d 1448, 1452 (2nd Cir. 1991), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The non-moving party must come forward with enough evidence to support a jury verdict... and the... motion will not be defeated merely... on the basis of conjecture or surmise." Trans Sport, supra, 964 F.2d at 188. Summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Nippon Fire & Marine Ins. Co., Ltd. v. Skyway Freight Systems, Inc., 235 F.3d 53 (2nd Cir. 2000) quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Here, the plaintiff asserts that "there are [no] facts that can be disputed" regarding his claim that he was sexually assaulted. (Docket No. 37 at page 1). In support of this argument, the plaintiff points to the fact that the medical records reflect his complaints to Dr. Haimes and Nurse Practicioner Sollotti regarding "extremely aggressive pat frisks." Id. The medical records do reflect that the plaintiff complained of sexually aggressive pat frisks. (Docket No. 37-1 at pages 2-3). However, the recording of these complaints by the medical personnel only establishes that the plaintiff complained of sexually aggressive pat frisks. This evidence does not foreclose factual issues relating to whether any such conduct on the part of the defendants' actually occurred. The defendants have denied the conduct attributed to them by the plaintiff. (Docket No. 35). The Court also notes that the plaintiff filed the instant motion prior to the exchange of substantial discovery in this matter. (Docket No. 39-1 at ¶¶ 20-21). The defendants assert that the Court should defer or deny the plaintiff's motion as premature. (Docket No. 39-1 at ¶ 17, 25).
Under the circumstances in this matter, it appears that the instant motion was filed prematurely. In any event, a question of fact exists as to whether any conduct by the defendants amounted to a sexual assault of the plaintiff. It is recommended that the plaintiff's motion for summary judgment be denied without prejudice.
Motions to Appoint Counsel
The plaintiff has filed two motions seeking the appointment of counsel (Docket Nos. 44 and 50). There is no constitutional right to appointed counsel in civil cases. However, under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants. See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). Assignment of counsel in this matter is clearly within the judge's discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). The factors to be considered in deciding whether or not to assign counsel include the following: (1) Whether the indigent's claims seem likely to be of substance; (2) Whether the indigent is able to investigate the crucial facts concerning his claim;
(3) Whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder; (4) Whether the legal issues involved are complex; and (5) Whether there are any special reasons why appointment of counsel would be more likely to lead to a just determination. Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986); Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.2001); Abdur-Raqiyb v. Erie County Medical Center, 2006 WL 1800710, at *1 (W.D.N.Y., 2006).
In considering a motion for the appointment of counsel, the Court may also consider the merits of the plaintiff's claim. The Second Circuit has held 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). Therefore, the Court must first look to the "likelihood of merit" of the underlying dispute, Cooper, 877 F.2d at 174, and "even though a claim may not be characterized as frivolous, counsel should not be appointed in a case where the merits of the... claim are thin and his chances of prevailing are therefore poor [, ]" Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.2001) (denying counsel on appeal where petitioner's appeal was not frivolous but nevertheless appeared to have little merit). See also Smolen v. Corcoran, 2013 WL 4054596 (W.D.N.Y., 2013)(In deciding whether to grant a request to appoint pro bono counsel, district courts should evaluate several factors, including the merits of the claim, the factual issues and complexity of the case, the plaintiff's ability to present the case, and the plaintiff's inability to obtain counsel.).
The Court has reviewed the facts presented herein in light of the factors required by law as discussed above. At this time, it does not appear the legal issues presented are unduly complex. The plaintiff's filings in this case reflect that he understands the issues presented and can adequately articulate his factual and legal arguments. The plaintiff's motions for appointment of counsel are denied. It is the ...