Richard v. New York City Department of Education

Filing 161

MEMORANDUM AND ORDER: For the reasons stated in the attached Memorandum and Order, the Court denies without prejudice Plaintiff's 153 requests to subpoena the EEOC and to appoint pro bono counsel. Ordered by Chief Judge Margo K. Brodie on 9/15/2022. (Bacchi, Joseph)

Case 1:16-cv-00957-MKB-CLP Document 161 Filed 09/15/22 Page 1 of 4 PageID #: 2581

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------PATRICK RICHARD,
Plaintiff,

MEMORANDUM & ORDER
16-CV-957 (MKB)

v.
NEW YORK CITY DEPARTMENT OF
EDUCATION,
Defendant.
-------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Patrick Richard, proceeding pro se, commenced the above-captioned action on
February 25, 2016, against Defendant the New York City Department of Education (the “DOE”).
(Compl., Docket Entry No. 1.) On September 15, 2022, the Court granted Defendant’s motion
for summary judgment, dismissed the Third Amended Complaint (“TAC”) in its entirety, and
granted Plaintiff leave to file a Fourth Amended Complaint alleging claims of failure to promote
him to several positions based on his race, color, and national origin in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the New York State Human
Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), and the New York City Human Rights
Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”). (Mem. & Order dated Sept. 15, 2022,
Docket Entry No. 160.)
Currently before the Court are Plaintiff’s requests to subpoena the Equal Employment
Opportunity Commission (the “EEOC”) and to appoint counsel. (Letter dated June 24, 2020,
Docket Entry No. 153.) For the reasons discussed below, the Court denies Plaintiff’s requests.

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I.

Background
On June 24, 2020, Plaintiff filed a request to (1) subpoena “the EEOC and [r]elevant

[o]rganizations for [r]eports of [i]nvestigations and recommendations to [Defendant] [p]ertaining
to [t]his [c]ase and [a]nti-[r]acism,” (2) preserve his right to a proper EEOC investigation
following his October 30, 2019 termination, and (3) obtain legal representation. (Letter dated
June 24, 2020.) On July 2, 2020, the Court denied Plaintiff’s application to preserve his right to
a proper EEOC investigation and directed him to take all necessary action to separately pursue
any claims not identified in the TAC; the Court also deferred ruling on Plaintiff’s applications to
subpoena the EEOC and to obtain counsel. (Order dated July 2, 2020.)
a. Subpoena request
The Court denies without prejudice Plaintiff’s request for a subpoena. As an initial
matter, Plaintiff failed to comply with Rule 45 of the Federal Rules of Civil Procedure, which
requires Plaintiff to direct his request to the Clerk of Court. See Pietsch v. Marcantonio, No. 13CV-4696, 2016 WL 1069656, at *4 (E.D.N.Y. Mar. 16, 2016) (denying pro se plaintiff’s request
for subpoena because the plaintiff did “not request[] that the Clerk issue a subpoena nor . . .
annex[] the subpoenas to his applications” and noting that “[s]ubpoenas directed to non-parties
are governed by Rule 45,” which provides that “the Clerk of the Court shall issue a signed but
blank subpoena to the party requesting it, who is responsible for completing the subpoena for
service”); Hassan v. Town of Brookhaven, No. 13-CV-4544, 2015 WL 3455108, at *4 (E.D.N.Y.
May 29, 2015) (denying pro se plaintiff’s request to subpoena nonparty where the plaintiff did
“not explain[] what efforts, if any, he . . . made to contact the [nonparty] to obtain these records,
the result of those efforts, or specifically why a subpoena is needed to achieve their production”
and did “not claim to have consulted Rule 45 prior to making the instant motion, or [to have]

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complied with any of the requirements or procedures set forth therein for issuing a subpoena”);
see also Cunningham v. Channer, LLC, No. 17-CV-1305, 2018 WL 4620391, at *3 (W.D.N.Y.
Sept. 26, 2018) (noting that “in the future, [the pro se plaintiff] should request subpoenas directly
from the Clerk and need not do so through a motion” and “refer[ring] [the plaintiff] to Rule 45(b)
for the rules governing service of subpoenas”); Amaker v. Zon, No. 94-CV-843E, 1998 WL
268861, at *1 (W.D.N.Y. May 18, 1998))); Amaker, 1998 WL 268861, at *1 (noting that Rule 45
“provides, in pertinent part, that ‘[t]he clerk shall issue a subpoena, signed but otherwise in
blank, to a party requesting it, who shall complete it before service’” and thus the pro se
plaintiff’s “motion for a subpoena will be denied without prejudice to his requesting such from
the Clerk of this Court” (alteration in original)). In addition, Plaintiff made his request after
discovery closed and Defendant’s summary judgment motion was fully briefed, and his request
to subpoena “all appropriate reports and documents pertaining to investigations done and
recommendations issued to [Defendant] by the EEOC or other organizations pertaining [to his]
complaints and related issues of harassment and discrimination for the length of this case,”
(Letter dated June 24, 2020), is overly broad and clearly designed for discovery. United States
ex rel. Lee v. N. Metro. Found. for Healthcare, Inc., No. 13-CV-4933, 2021 WL 3634765, at *5
(E.D.N.Y. Aug. 16, 2021) (“A party may not employ Rule 45 to seek documents after the close
of discovery where ‘the scope of the request is broad and clearly is designed for discovery, not
last-minute trial needs (such as for originals of documents where copies were produced in
discovery and there is a need for the original at trial).’” (quoting Dodson v. CBS Broad., Inc., No.
02-CV-9270, 2005 WL 3177723, at *2 (S.D.N.Y. Nov. 29, 2005))). To the extent Plaintiff
wishes to subpoena a nonparty for documents relevant to the claims for which the Court has
granted leave to amend, he may do so by following the procedures outlined in Rule 45.

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b. Request to appoint counsel
The Court also denies without prejudice Plaintiff’s request to appoint counsel. There is
no right to pro bono counsel in a civil case. See Guggenheim Cap., LLC v. Birnbaum, 722 F.3d
444, 453 (2d Cir. 2013). However, the Court may request that an attorney volunteer to serve as
counsel and looks to a number of factors to determine whether it is appropriate to request a
volunteer attorney for a particular case. See Ferelli v. River Manor Health Care Ctr., 323 F.3d
196, 203–04 (2d Cir. 2003) (citing Hodge v. Police Officers, 802 F.2d 58, 61–62 (2d Cir. 1986)).
The first consideration, and threshold requirement, is whether the movant’s position is “likely to
be of substance.” Id. at 204. Plaintiff has not met the threshold requirement of establishing that
his position is “likely to be of substance.” Id.
Accordingly, the Court denies without prejudice Plaintiff’s request to appoint pro
bono counsel.
II. Conclusion
For the foregoing reasons, the Court denies without prejudice Plaintiff’s requests to
subpoena the EEOC and to appoint pro bono counsel.
Dated: September 15, 2022
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge

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