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Fowler v. Fischer

United States District Court, W.D. New York

March 30, 2017

BRIAN FISCHER, et al., Defendants.

          DECISION & ORDER

          JONATHAN W. FELDMAN Magistrate Judge.

         Relevant Background

         Pro se plaintiff Jamarr Fowler ("plaintiff" or "Fowler") has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 alleging claims of retaliation, excessive force and failure to protect, failure to provide adequate medical care, and due process violations. See Docket # 4. Currently before the Court is plaintiff's motion for appointment of counsel and miscellaneous relief (Docket # 27), and defendants Brian Fischer, et al.'s (collectively "defendants") motion to sever (Docket # 30). Defendants responded to plaintiff's motion oh July 6, 2016. See Docket # 29. Plaintiff responded to defendants' motion on July 29, 2016. See Docket # 32. This Decision and Order will resolve these pending motions.


         Plaintiff's Motion to Conduct Depositions or Alternatively for Appointment of Counsel: Plaintiff requests that (1) he be allowed to conduct depositions instead of interrogatories; (2) the costs of the depositions be waived or covered by the Court; (3} he be allowed to conduct the depositions over the telephone; and (4) if the above requests are not granted, the Court appoint him an attorney. See Docket # 27.

         The Federal Rules of Civil Procedure do not prohibit or limit a plaintiff's ability to depose parties based either on status as a prisoner or as a pro se litigant. See Fed.R.Civ.P. 30. So long as plaintiff provides proper notice to defendant and bears all of the costs related to the taking of a deposition, he need not seek leave of the Court to proceed. See id. However, "[t]he deposition by inmate litigants pose logistical issues, especially if these litigants are proceeding as poor persons." Mowlin v. Lusk, No. 11-cv-712, 2014 WL 298155, at *9 (W.D.N.Y. Jan. 28, 2014). First, "prison order and security concerns raised by defendants weigh against plaintiff's request to conduct oral depositions." Whiteside v. Thalheimer, No. 13-cv-408, 2015 WL 2376001, at *2 (S.D. Ohio May 18, 2015). Second, "[t]he costs of a deposition (the fees for swearing the oaths for testimony, the costs of recording testimony, and, if by remote means, the costs of setting up the recording) is usually borne by the party taking the deposition, even when that party is proceeding pro se and granted in forma pauperis status." Nowlin, 2014 WL 298155, at *9; see Malik v. Lavalley, 994 F.2d 90, 90 (2d Cir. 1993) ("[F]ederal courts are not authorized to waive or pay witness fees on behalf of an in forma pauperis litigant."); Murray v. Palmer, No. 903-cv-1010, 2006 WL 2516485, at *4 (N.D.N.Y. Aug. 29, 2006) ("[A] litigant proceeding in forma pauperis does not have a right to a waiver of (1) the cost of a deposition stenographer, (2) the daily attendance fee and mileage allowance that must be presented to an opposing witness under Rule 45 of the Federal Rules of Civil Procedure, or (3) the copying cost of any deposition transcripts.").

         Given these logistical and financial realities, many incarcerated pro se plaintiffs utilize other devices such as interrogatories, deposition by written questions, or requests for admissions to obtain needed discovery. See Kramer v. City of New Kensington, No. 13-606, 2016 WL 406284, at *2 (W.D. Pa. Feb. 3, 2016) ("In light of the expense of oral depositions and logistical difficulties presented to an inmate proceeding pro se, it is often preferable for pro se inmates to seek discovery through depositions by written questions pursuant to Rule 31 of the Federal Rules of Civil Procedure . . . ."); Woodward v. Mullah, No. 08-CV-463, 2010 WL 1848495, at *9 (W.D.N.Y. Feb. 22, 2010) (despite financial limitations, plaintiff "is not without means to investigate his case" by using document demands, interrogatories and deposition upon written questions); McConnell v. Pepp, No. 98 civ. 2604, 1991 WL 50965, at *1 (S.D.N.Y. Apr. 3, 1991) ("Considering that plaintiff is an incarcerated prisoner proceeding in forma pauperis, we believe that the service of interrogatories by plaintiff is a more practical means of discovery.").

         Here, plaintiff argues that other discovery devices would not be as effective as depositions. See Docket # 27, at 1. While that may be true, plaintiff is not entitled to have the defendants or the court system subsidize the costs associated with any discovery vehicle, including depositions. For these reasons, plaintiff's motion to take depositions and subsidize the costs of those depositions (Docket # 27) is denied.

         In the alternative, plaintiff seeks the appointment of counsel. Indigent civil litigants, unlike criminal defendants, do not have a constitutional right to counsel. See Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). Nevertheless, a court has the discretion to appoint counsel to represent indigent litigants pursuant to 28 U.S.C. § 1915(e) when the facts of the case warrant it. Sears, Roebuck & Co. v. Charles W Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988); see also. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984) . The Second Circuit set forth the factors to be considered in deciding whether or not to assign counsel in Hodge v. Police Officers:

[T] he district judge should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider 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.

802 F.2d 58, 61-62 (2d Cir. 1986).

         In applying the Hodge factors, the Court finds that plaintiff's allegations satisfy the initial threshold showing of merit. See, e.g., Mackey v. DiCaprio, 312 F, Supp. 2d 580, 582 (S.D.N.Y. 2004) (finding that plaintiff's Eighth Amendment claims that defendants subjected him to cruel and unusual punishment satisfied threshold showing of merit); see also Allen v. Sakellardis, No. 02 civ. 4373, 2003 WL 22232902, at *l-2 (S.D.N.Y. Sept. 29, 2003) (finding that plaintiff's allegation that correctional officers assaulted him while he was restrained "appears to have some chance of success"). However, after reviewing the complaint and considering the nature of the factual and legal issues involved, as well as plaintiff's ability to present his claims, the Court concludes that appointment of counsel is not warranted at this particular time.

         "Volunteer lawyer time is a precious commodity" that "should not be allocated arbitrarily." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). Here, plaintiff's pro se complaint is detailed in nature and adequately describes the events that allegedly led to his injuries. The factual circumstances surrounding plaintiff's claims do not appear to be unusually complicated and the legal issues alleged are not so complex as to make it impossible for plaintiff to proceed without counsel. The case centers on three major issues, which are somewhat related: (1) retaliation and false misbehavior accusations arising out of such alleged retaliation; (2) failure to provide reasonable accommodations for plaintiff's disability by transferring him and refusing to transfer him back; and (3) discontinuance of his seizure medication. Up to this point, plaintiff has submitted a clear, well-drafted complaint, and has drafted motion papers containing logical factual arguments in support of his requests for relief. Moreover, plaintiff's case is still in the discovery stage.

         Accordingly, at this juncture at least, plaintiff appears sufficiently knowledgeable and equipped to understand and handle the litigation. See Castro v. Manhattan E. Suite Hotel, 279 F.Supp.2d 356, 358 (S.D.N.Y. 2003} (denying appointment of counsel where "the case does not present novel or overly complex legal issues, and there is no indication that [plaintiff] lacks the ability to present his case"). Given the limited resources available with respect to pro bono counsel, the Court finds no "special reason" why appointment of counsel now would be more likely to lead to a just determination. See Boomer v. Deperio, No. 03-CV-6348L, 2005 WL 15451, at *l-2 (W.D.N.Y. Jan. 3, 2005) (denying motion to appoint counsel despite plaintiff's claims that the matter was complex and he had a limited knowledge of law}; Harris v. McGinnis, No. 02 civ. 6481, 2003 WL 21108370, at *2 (S.D.N.Y. May 14, 2003) (denying motion for appointment of counsel where plaintiff "offered no special reason why appointment of counsel . . . ...

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