United States District Court, W.D. New York
DECISION & ORDER
JONATHAN W. FELDMAN Magistrate Judge.
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.
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.
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.").
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.").
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
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.
[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).
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.
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.
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 . . . ...