Kalamaras v. Nassau County et al

Filing 12

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; denying 7 Motion to Appoint Counsel; Plaintiff's application to proceed in forma pauperis is GRANTED (Docket Entry 2) and the Court ORDERS service of the Summon ses and Complaint upon all Defendants by the USMS EXCEPT the Sheriff's Department. Plaintiff's claims against the Sheriff's Department are DISMISSED WITH PREJUDICE. Plaintiff's request for the appointment of pro bono counsel (Doc ket Entry 7) is DENIED WITHOUT PREJUDICE AND WITH LEAVE TO RENEW when the action is ready for trial, if warranted at that time. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good fai th and therefore in forma pauperis status is DENIED for the purpose of any appeal. The Clerk of the Court is directed to mail a copy of this Order to the Plaintiff at his last known address. So Ordered by Judge Joanna Seybert on 1/29/2016. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JAMES KALAMARAS,
Plaintiff,
MEMORANDUM & ORDER
15-CV-4649(JS)(ARL)

-againstNASSAU COUNTY; NASSAU COUNTY
DISTRICT ATTORNEY’S OFFICE;
RICK WHELAN, Chief of Organized
Crime and Rackets Bureau; ANNE
DONNELLY, Deputy Chief of Organized
Crime and Rackets Bureau; GEORGE J.
SMIT, Assistant District Attorney
of Organized Crime and Rackets
Bureau; and NASSAU COUNTY
SHERIFF’S DEPARTMENT,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
James Kalamaras, pro se
15002287
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
For Defendants:

No appearances.

SEYBERT, District Judge:
On August 3, 2015, incarcerated pro se plaintiff James
Kalamaras (“Plaintiff”) filed an action pursuant to 42 U.S.C.
§ 1983 (“Section 1983”) against Nassau County, the Nassau County
District Attorney’s Office (“NCDA”), Rick Whelan, Chief of Nassau
Organized Crime and Rackets Bureau (“Whelan”); Anne Donnelly,
Deputy Chief of Organized Crime and Rackets Bureau (“Donnelly”);
and George J. Smit, Assistant District Attorney of Organized Crime

and

Rackets

Defendants”)

Bureau
(See

(“Smit”

Compl.,

and

Docket

collectively
Entry

1)

“the

original

accompanied

by

an

application to proceed in forma pauperis (See, Docket Entry 2). On
September

10,

2015,

Plaintiff

filed

an

application

for

the

appointment of pro bono counsel to represent him in this case.
(See Docket Entry 7.)

On September 11, 2015, Plaintiff filed an

Amended Complaint against the original Defendants and added the
Nassau County Sheriff’s Department (“Sheriff’s Department” and
collectively, “Defendants”).
Upon

review

of

(See Am. Compl., Docket Entry 10.)

the

declaration

in

support

of

the

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fee.

See 28 U.S.C. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.
Accordingly,

the

Court

ORDERS

service

of

the

Summonses

and

Complaint upon Defendants other than the Sheriff’s Department by
the United States Marshal Service (“USMS”).1
1

Plaintiff’s claims against the Sheriff’s Deparment are not
plausible because it has no independent legal identity. It is
well-established that “under New York law, departments that are
merely administrative arms of a municipality do not have a legal
identity separate and apart from the municipality and, therefore,
cannot sue or be sued.” Davis v. Lynbrook Police Dep’t, 224 F.
Supp. 2d 463, 477 (E.D.N.Y. 2002); see also Melendez v. Nassau
Cnty., 10–CV–2516, 2010 WL 3748743, at *5 (E.D.N.Y. Sept. 17,
2010) (dismissing the claims against Sheriff’s Department because
it lacks the capacity to be sued). Thus, Plaintiff’s claims
against the Sheriff’s Department are not plausible and are
DISMISSED WITH PREJUDICE.
2

However, for the reasons that follow, the application for
the appointment of pro bono counsel is DENIED WITHOUT PREJUDICE AND
WITH LEAVE TO RENEW when this case is trial ready, if so warranted
at that time.
DISCUSSION
I.

Appointment of Pro Bono Counsel
Unlike criminal defendants, civil litigants do not have

a constitutional right to the appointment of counsel.

However,

pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an
attorney to represent any person unable to afford counsel.”

In

deciding a motion for appointment of counsel, “the district judge
should first determine whether the indigent’s position seems likely
to be of substance.”
Cir. 1986).

Hodge v. Police Officers, 802 F.2d 58, 61 (2d

A position is likely to be of substance if it appears

to the court that the plaintiff “appears to have some chance of
success . . . .”

Hodge, 802 F.2d at 60-61.

Where a plaintiff

satisfies this threshold requirement, the Second Circuit instructs
that
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.
3

Hodge, 802 F.2d at 61-62.

These factors are not restrictive and

“[e]ach case must be decided on its own facts.”

Id. at 61.

Notwithstanding the requirement that pleadings drafted by
a pro se litigant, are to be construed liberally and interpreted to
raise the strongest arguments they suggest, see Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994), the Court, upon careful review of
the facts presented herein and in light of the factors required by
law as discussed above, finds that the appointment of counsel is
not warranted at this time.
Even assuming that Hodge’s threshold requirement is
satisfied, the record reflects that the legal issues presented are
not unduly complex and that Plaintiff can adequately prosecute his
claim pro se.

Based on this review, Plaintiff’s motion for

appointment of pro bono counsel is DENIED WITHOUT PREJUDICE AND
WITH LEAVE TO RENEW when the action is ready for trial, if
warranted at that time. It is Plaintiff’s responsibility to retain
an attorney or press forward with this lawsuit pro se. See 28
U.S.C. § 1654.
CONCLUSION
Plaintiff’s application to proceed in forma pauperis is
GRANTED (Docket Entry 2) and the Court ORDERS service of the
Summonses and Complaint upon all Defendants by the USMS EXCEPT the
Sheriff’s Department.

Plaintiff’s claims against the Sheriff’s
4

Department are DISMISSED WITH PREJUDICE.

Plaintiff’s request for

the appointment of pro bono counsel (Docket Entry 7) is DENIED
WITHOUT PREJUDICE AND WITH LEAVE TO RENEW when the action is ready
for trial, if warranted at that time.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose of
any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45,

82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

The Clerk of the Court is

directed to mail a copy of this Order to the Plaintiff at his last
known address.
SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

January
29 , 2016
Central Islip, New York

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