United States District Court, N.D. New York
ANTHONY BENNETT C-54176 Plaintiff, Pro Se
DECISION AND ORDER
D'AGOSTINO United States District Judge
Anthony Bennett commenced this action pro se by filing a
pleading which he referred to as a "Bill in
Equity". Dkt. No. 1. Plaintiff, who is civilly confined
at the Central New York Psychiatric Center
("CNYPC"), also filed an application to proceed in
forma pauperis. Dkt. No. 6 ("IFP Application").
Plaintiff filed a subsequent submission entitled
"Amended Complaint to a Bill in Equity". Dkt. No.
9. In light of plaintiff's pro se status, his amended
pleading was liberally construed to be an amended civil
rights complaint filed pursuant to 42 U.S.C. § 1983
("Section 1983"). The operative pleading is the
amended complaint. Dkt. No. 9 ("Am. Compl."). By
Decision and Order filed on May 26, 2017, plaintiff's IFP
Application was granted but following review of the amended
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B),
plaintiff's claim under the Health Insurance Portability
and Accountability Act of 1996 ("HIPAA"), Pub. L.
104-191, 110 Stat. 1936 was dismissed with prejudice; the
Court directed service of the amended complaint on Lucy Dawes
with respect to plaintiff's Fourteenth Amendment due
process claim; all of the remaining claims were dismissed
without prejudice; and Jacob Lew and Deborah McCulloch were
dismissed as defendants without prejudice. Dkt. No. 14 (the
"May 2017 Order").
before the Court is plaintiff's submission entitled
"Order to Show Cause/Discovery". Dkt. No. 13. In
part, plaintiff requests that this action be filed with
"the proper heading of 'Article-III district court
of the United States'" and that the Court show cause
why this action cannot "be placed on the proper side of
the court which is the private side." Id. at 2.
Plaintiff's submission also requests appointment of
counsel, contains a demand for a jury trial, and seeks
discovery. Id. at 2-3, 10.
plaintiff argues that the Clerk's Office staff had
"no authority to take it upon themselves to change
[plaintiff's] filing . . . which was a Bill in equity
concerning trust business; not a 1983 civil action in the
Public Sector." Dkt. No. 13 at 2. Plaintiff asks the
Court to "show cause as to why [plaintiff] can not have
[his] case placed on the Private side of the court with the
Article-III heading and a proper hearing in chambers with
[plaintiff] present." Id. at 3; see
also Dkt. No. 16 at 5 (asking the Court to "correct
this displayed foolishness and put everything on its proper
side"). As plaintiff was advised in the May 2017 Order,
and in a previous habeas corpus proceeding that he filed in
Although petitioner demands to proceed in "equity"
as a "private citizen" in the "Chancery
Division" of the Court, no such proceeding exists. The
Federal Rules of Civil Procedure, in effect since 1938,
"abolished the distinction between actions at law and
suits in equity[.]" Fed.R.Civ.P. 1, Advisory Committee
Notes. The Rules specify that there is "one form of
action - the civil action." Fed.R.Civ.P. 2; Russo v.
Hickenlooper, No. 1:15-CV-1740, 2016 WL 67568 at *3 (D.
Colo. Jan. 6, 2016). "In other words, it no longer
matters whether the action would have been considered one in
equity or in law" prior to the enactment the Federal
Rules of Civil Procedure because those rules "apply to
all actions filed in the United States District
Courts[.]" Dickinson v. Granade, No.
1:16-CV-0153, 2016 WL 3647181 at *7 (S.D. Ala. Jun. 1, 2016),
adopted by 2016 WL 3637093 (S.D. Ala. Jun. 30,
May 2017 Order at 13 (citing Bennett v. McCulloch,
No. 9:16-CV-1437 (BKS/DJS), Dkt. No. 9 at 6). Accordingly,
the Court denies plaintiff's request that the
"proper heading" be placed on this action and that
the Court show cause why this action should not "be
placed on the proper side of the court which is the private
side." If plaintiff does not want this action to proceed
further as a Section 1983 action, he may submit a written
motion to voluntarily dismiss this action.
plaintiff requests appointment of counsel. Dkt. No. 13 at 2
("requesting a Solicitor of the court be assigned to
[him] as counsel for this Bill filed in equity"). In
Terminate Control Corp. v. Horowitz, 28 F.3d 1335
(2d Cir. 1994), the Second Circuit reiterated the factors
that a court must consider in ruling upon such a motion. In
deciding whether to appoint counsel, the court 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 a number of other
factors in making its determination. Terminate Control
Corp., 28 F.3d at 1341 (quoting Hodge v. Police
Officers, 802 F.2d 58, 61 (2d Cir. 1986)). Of these
criteria, the most important is the merits, i.e.,
"whether the indigent's position was likely to be of
substance." McDowell v. State of N.Y., No. 91
CIV. 2440, 1991 WL 177271, at *1 (S.D.N.Y. Sep. 3, 1991)
(quoting Cooper v. A. Sargenti & Co., Inc., 877
F.2d 170, 172 (2d Cir. 1989)). Indigents do not have to
demonstrate that they can win their cases without the aid of
counsel; they do have to show likely merit. Id.
action was only recently commenced. The defendant has not
been served or responded to the allegations in the amended
complaint, and the only facts upon which this Court may base
its decision as to whether this lawsuit is of substance are
those portions of plaintiff's amended complaint wherein
he states the facts surrounding his claim. Where a plaintiff
does not provide a court with evidence, as opposed to mere
allegations, relating to his or her claims, the party does
not meet the first requirement imposed by the Second Circuit
relative to applications seeking appointment of pro bono
counsel. See Harmon v. Runyon, No. 96-Civ.-6080,
1997 WL 118379 (S.D.N.Y. Mar. 17, 1997).
motion for appointment of counsel is denied without
prejudice. After the defendant has responded to the
allegations in the amended complaint, plaintiff may choose to
file a new motion for appointment of counsel, at which time
the Court might be better able to determine whether such
appointment is warranted in this lawsuit.
plaintiff's submission is liberally construed as
containing a written demand for a jury trial pursuant to Rule
38 of the Federal Rule of Civil Procedure. Dkt. No. 13 at 3.
Rule 38(b) states that "[on] any issue triable of right
by a jury, a party may demand a jury trial by: (1) serving
the other parties with a written demand--which may be
included in a pleading--no later than 14 days after the last
pleading directed to the issue is served; and (2) filing the
demand in accordance with Rule 5(d)." Fed.R.Civ.P.
38(b). "'[T]he last pleading directed to' an
issue is not the pleading that raises the issue, it is the
pleading that contests the issue. Normally, that pleading is
an answer, or, with respect to a counterclaim, a reply."
McCarthy v. Bronson, 906 F.2d 835, 840 (2d
Cir. 1990). Because defendant has not answered the amended
complaint, the fourteen days set forth in Fed.R.Civ.P. 38(b)
have not started to run. See Windsurfing Int'l, Inc.
v. Ostermann, 534 F.Supp. 581, 585-86 (S.D.N.Y. 1982).
Therefore, in response to plaintiff's request that the
Court note plaintiff's demand for a jury trial, the Clerk
of the Court will be directed to note plaintiff's demand
for a jury trial on the docket report.
plaintiff's request for discovery (Dkt. No. 13 at 10) is
denied as premature as the defendant has not been served or
appeared in this action. If and when defendant has submitted
an answer to plaintiff's amended complaint, the Court
will issue a Mandatory Pretrial Discovery and Scheduling
Order outlining the terms of discovery and requiring the
parties to provide certain mandatory disclosure. Once
plaintiff receives mandatory disclosure, prior to serving
additional discovery, he should review the disclosure
thoroughly to determine whether the disclosure might in fact
satisfy all of plaintiff's discovery needs. If, after
reviewing the mandatory disclosure, plaintiff still wishes to
conduct additional discovery, plaintiff is advised that
discovery is conducted directly between the parties.
Plaintiff may refer to the Federal Rules of Civil Procedure,
Rule 26 et seq., for guidance in drafting and
serving discovery requests.
the Court has reviewed the remainder of plaintiff's
submission and finds that it presents no basis for judicial
relief. Therefore, ...