Jenkins v. Morris et al

Filing 43

MEMORANDUM AND ORDER ADOPTING 33 REPORT AND RECOMMENDATION: Plaintiff's request for entry of default and motion for a default judgment (Docket Entries # 31 , 35 and 36 ) are denied. Plaintiff's 41 request for appointment of counsel, dated 4/16/2012, is also denied. This Court assumes that this request for appointment of counsel was mailed before plaintiff received Judge Pollak's 4/11/2012 order 33 directing that plaintiff refrain from filing another request for c ounsel until after the conclusion of discovery and was not contemptuous. However, this Court cautions plaintiff not to disregard Judge Pollak's 4/11/2012 Order and to persist in his pattern of filing repeated requests for counsel. SO ORDERED by Judge Sandra L. Townes, on 5/17/2012. C/mailed to pro se Plaintiff. (Latka-Mucha, Wieslawa)

IIILED
U,f· AWImI.O.N.v.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

* MAY 23 2012 *

-------------------------------------------------------------}(

BROOKLYN OFFICE

MATTHEW JENKINS,
Plaintiff,
-against-

MEMORANDUM AND ORDER
ll-CV -4178 (SLT) (CLP)

DETECTIVE LIAMM MORRIS, et at.,
Defendants.

-------------------------------------------------------------}(
TOWNES, United States District Judge:
In August 2011, plaintiff Matthew Jenkins commenced this pro se action against two
New York City Police Department ("NYPD") detectives - Liamm Morris and Patrick Crosby
(collectively, "the Detectives") - and various public officials: New York City Mayor Michael
Bloomberg; NYPD Commissioner Raymond Kelly; Brooklyn Borough President Marty
Markowitz; Kings County District Attorney Charles J. Hynes; Kings County Clerk Nancy T.
Sunshine; Martha Hirst, the Commissioner of the Department of Citywide Administrative
Services; and Rose Gill (presumably Rose Gill Hearn), the Commissioner of the New York City
Department of Investigation. In a Memorandum and Order dated September 1, 2011, this Court
granted plaintiff leave to file an amended complaint setting forth factual allegations to support
his claims against the Detectives, but dismissed without prejudice plaintiff s claims against
defendants Bloomberg, Kelly, Markowitz, Hynes, Sunshine, Hirst, and Gill. The Court
e}(plained that plaintiff could include claims against these seven defendants in his amended
complaint only ifhe set forth factual allegations concerning these defendants and e}(plained how
they were personally involved in the federal constitutional violations alleged in the amended
complaint.

In mid-September 2011, plaintiff filed an amended pleading, naming as parties all of the
defendants who were previously dismissed from this action except for Nancy Sunshine. The
Amended Complaint also named as defendants two individuals not named in the original
complaint - the Director of the Department ofInternal Affairs and Vincent Schiraldi,
Commissioner of the New York City Department of Probation - and clarified the factual
allegations against the Detectives. In a memorandum and order dated November 7,2011
(hereafter, the "November 7 Order"), this Court dismissed plaintiffs claims against defendants
Bloomberg, Markowitz, Hynes, Hirst, Hearn, Schiraldi and the Director of Internal Affairs, but
directed service of process upon the remaining defendants - Detectives Morris and Crosby and
Police Commissioner Kelly. The Court also denied plaintiffs request that this Court "appoint
counsel" on his behalf without prejudice to renewal after defendants either answered the
amended complaint or applied for permission to move to dismiss.
According to the docket sheet, defendant Kelly waived service of process on December
15,2011. See Docket Entry #12. However, defendants Morris and Crosby apparently did not

waive service and were not served. Accordingly, on January 13,2012, the New York City Law
Department ("Corporation Counsel") wrote a letter to Magistrate Judge Cheryl L. Pollak ("Judge
Pollak"), requesting that Commissioner Kelly's time to respond to the amended complaint be
extended to "21 days after the remaining individual defendants are served with process in this
matter." Letter to Hon. Cheryl L. Pollak from Asst. Corp. Counsel Max McCann, dated Jan. 13,
2012, at 2. That letter stated that, if Morris and Crosby were served and if Corporation Counsel
represented them, Corporation Counsel would likely file a motion to dismiss on their behalf that
would be similar to a motion that Corporation Counsel expected to file on Commissioner Kelly's
2

behalf. Accordingly, Corporation Counsel argued, "an enlargement of Commissioner Kelly's
time to respond to the Amended Complaint would promote judicial economy by allowing
defendants to present motions to dismiss at the same time." Id. Judge Pollak granted
Corporation Counsel's application on January 13,2012. See Docket Entry #15.
By submissions dated January 10 and 18,2012, plaintiff renewed his request for the
assignment of counsel. In an endorsed order dated January 18,2012, this Court denied the first
of these two requests as premature. That order cited that portion of the November 7 Order which
stated that plaintiff could renew his motion for counsel after defendants either answered the
amended complaint or applied for permission to move to dismiss.
On February 24,2012, this Court received notification that the United States Marshals
Service's attempts to serve defendants Morris and Crosby at One Police Plaza had been
unsuccessful because no department or bureau had been specified for these two defendants. In
response to this notification, Judge Pollak issued a Valentin order, requesting that Corporation
Counsel "ascertain the service addressees) of defendants Morris and Crosby." Order dated Mar.
12,2012, at 3. This order stated, "Once this information is provided, summonses shall be issued,
and the Court shall direct service on the defendants." Id. The order also denied plaintiffs
January 18, 2012, request for appointment of counsel, and "reminded [plaintiffJ not to renew his
application for counsel until the remaining defendants [were] ... served and ... responded to his
Amended Complaint." Id. at 2.

3

On March 12 and March 21, 2012, this Court received two more submissions requesting
appointment of counsel. I On March 19,2012, this Court received two letters from plaintiff,
dated March 13 and 15,2012, which sought copies of various legal materials. The second of
these letters specifically noted that plaintiff had received a copy of Judge Pollak's "latest order,
regarding the service address[es] of the other two [defendants]." Letter to Cheryl L. Pollak from
Matthew Jenkins, dated Mar. 15,2012, at 1. Nonetheless, in a flurry of submission filed in late
March or early April 2012, plaintiff requested an entry of default and moved for a default
judgment with respect to all three defendants. Corporation Counsel opposed that motion in a
letter dated April 10, 2012.
On April 11,2012, Judge Pollak, acting sua sponte, issued a report and recommendation
(the "R&R"), briefly explaining why plaintiffs request for an entry of default was premature.
Specifically, the R&R noted that Commissioner Kelly's time to answer or otherwise respond to
the Amended Complaint had been extended to 21 days after defendants Morris and Crosby were
served, and that those two defendants had yet to be served. R&R at 2. Judge Pollak
recommended that plaintiffs request for a default judgment be denied. Id. In addition, Judge
Pollak denied the applications for appointment of counsel which this Court received on March 12
and March 21, 2012, and directed plaintiff to refrain from filing another request for counsel until
after the conclusion of discovery.
Although the R&R directed the Clerk of Court to send plaintiff a copy of the R&R, the
docket sheet does not indicate precisely when, if ever, the R&R was mailed. However, on April

lThe first of these was dated March 8, 2012, several days before Judge Pollak's order was
issued. The second was dated January 18,2012, and appears to be a copy (albeit not an exact
duplicate) of the request that was addressed in Judge Pollak's March 12,2012, order.
4

30, 2012, this Court received from plaintiff an "Affidavit!Affinnation in Opposition to
Defendant's Motion" dated April 25, 2012 ("Plaintiffs Affidavit"), which purports to respond to
the government's April 10, 2012, opposition to plaintiff s request for entry of default and motion
for a default judgment. In that submission, plaintiff recounts the history of this litigation in some
detail. Plaintiff s acknowledges, among other things, that the attempt to serve defendants Morris
and Crosby at One Police Plaza "was a failure," Plaintiffs Affidavit at 2, and that Corporation
Counsel responded to Judge Pollak's Valentin order on April 12, 2012. Id. at 3. However,
plaintiff makes no mention of Judge Pollak's January 13,2012, order extending Commissioner
Kelly's time to respond to the amended complaint to 21 days after the remaining individual
defendants are served with process in this matter. Rather, plaintiff notes that approximately 120
days have passed since defendant Kelly was served with process.

DISCUSSION
Plaintiff'S Request/or De/ault and Motion/or Summary Judgment
Since it is unclear when, or whether, the Clerk of Court served the R&R on plaintiff and
whether plaintiffs "Affidavit!Affinnation in Opposition to Defendant's Motion," dated April 25,
2012, can be construed as an opposition to the R&R, this Court will consider plaintiff s request
for entry of default and motion for a default judgment de novo. Rule 12(a)(1)(A) of the Federal
Rules of Civil Procedure provides that "[a] defendant must serve an answer: (i) within 21 days
after being served with the summons and complaint; or (ii) if it has timely waived service under
Rule 4(d), within 60 days after the request for a waiver was sent .... " However, Rule 6(b)(l) of
the Federal Rules of Civil Procedure provides that "[w]hen an act mayor must be done within a
specified time, the court may, for good cause, extend the time .... "
5

In this case, defendant Kelly waived service of process on December 15,2011. See
Docket Entry #12. By letter dated January 13,2012, Corporation Counsel timely requested an
extension of time in which to answer the amended complaint on behalf of Commissioner Kelly.
Specifically, Corporation Counsel requested an extension until 21 days after the remaining
individual defendants - that is, Morris and Crosby - were served with process. See Letter to
Hon. Cheryl L. Pollak from Asst. Corp. Counsel Max McCann, dated Jan. 13,2012, at 2. Judge
Pollak granted that request by endorsing the letter, "Request granted." See Docket Entry #15.
As plaintiff himself acknowledges, the United States Marshals Service's attempt to serve
defendants Morris and Crosby at One Police Plaza "was a failure," Plaintiffs Affidavit at 2,
because no department or bureau was specified for these two defendants. In order to rectify this
problem and to speed service of process, Judge Pollak issued a Valentin order requesting that
Corporation Counsel supply addresses at which Morris and Crosby could be served. As plaintiff
also acknowledges, Corporation Counsel responded to Judge Pollak's Valentin order on April 12,
2012, providing the requested information. Id. at 3. However, there is nothing on the docket
sheet to indicate that either of these two defendants has yet been served.
In light of the foregoing, plaintiff s request for entry of default and motion for a default
judgment are obviously premature. Defendants Morris and Crosby have not been served with
process, and defendant Kelly's time to answer or otherwise respond to plaintiffs amended
complaint has been extended to 21 days after Morris and Crosby are served with process.
Accordingly, plaintiff s request for entry of default and motion for a default judgment (Docket
Entries #31, 35 and 36) are denied.

6

Plaintiff's Application for Counsel and Other Requests
In early May 2012, this Court received yet another application for counsel, this one dated
April 16, 2012. This Court assumes that this application was mailed before plaintiff received
Judge Pollak's April 11, 2012, order directing that plaintiff refrain from filing another request for
counsel until after the conclusion of discovery and was not contemptuous. However, this Court
cautions plaintiff not to disregard Judge Pollak's order and to persist in his pattern of filing
requests for counsel.
In this connection, the Court suspects that plaintiff, a State inmate, may misunderstand
what this Court can and will provide him. First, unlike criminal defendants, who enjoy a Sixth
Amendment right to representation, civil litigants have no constitutional right to counsel. See In

re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). As a result, there is no panel of
government-funded attorneys available to be appointed to represent litigants in civil cases. A
court may "request an attorney to represent any person unable to afford counsel," 28 U.S.C.
§ 1915(e)( 1), but the Court cannot compel any attorney to accept a civil case on a pro bono basis.

Mallardv. Us. Dist. Court/or S. Dist. o/Iowa, 490 U.S. 296, 301-02 (1989).
A district court considering whether to request an attorney for a pro se civil litigant must
first determine whether the litigant's position seems "likely to be of substance." Cooper v. A.

Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989)), see also Ferrelli v. River Manor Health Care
Ctr., 323 F.3d 196,204-05 (2d Cir. 2003); Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.
1986). Only if a litigant's claims meet this "threshold requirement" does a court consider other
factors, such as the "plaintiffs ability to obtain representation independently, ... his ability to
handle the case without assistance in light of the required factual investigation, [and] the
complexity of the legal issues .... " Cooper, 877 F.2d at 172. At this preliminary stage of the
7

litigation, it is difficult to assess whether defendant's claims against defendants Kelly, Morris and
Crosby meet this threshold requirement. For this reason, both this Court and Judge Pollak have
directed plaintiff to make his request for counsel at a later time.
This Court also notes that there does not appear to be anything exceptional about
plaintiff s circumstances. Many pro se litigants are incarcerated and some of those, like plaintiff,
have been placed in punitive segregation at some point during their incarceration. While
plaintiff s access to legal materials may be limited - especially while he is in segregate housing this Court cannot compensate for this by providing copies of statutes, cases, or other legal
materials. In addition, while this Court has a Pro Se Office to assist pro se litigants with
procedural questions, that office cannot assist with substantive questions.

CONCLUSION
For the reasons stated above, plaintiffs request for entry of default and motion for a
default judgment (Docket Entries #31,35 and 36) are denied. Plaintiffs request for appointment
of counsel, dated April 16, 2012, is also denied. This Court assumes that this request for
appointment of counsel was mailed before plaintiff received Judge Pollak's April 11,2012, order
directing that plaintiff refrain from filing another request for counsel until after the conclusion of
discovery and was not contemptuous. However, this Court cautions plaintiff not to disregard
Judge Pollak's April 11, 2012, order and to persist in his pattern of filing repeated requests for
counsel.

SO ORDERED.

/S/
-r-------_-~---..-----

ANDRA L. TOWNES
nited States District Judge
Dated: May 11,2012
Brooklyn, New York

8

v

...........-

y

-