Abuhouran v. Warden FCI RayBrook et al

Filing 90

MEMORANDUM AND ORDER: ORDERED that plaintiff's Objection (Filing No. 89 ) to the Magistrate Judge's Report-Recommendation and Order (Filing No. 85 ) is overruled and denied as follows: Plaintiff's objection to the Magistrate Judge� 39;s denial of his Motion to Appoint Counsel (Filing No. 77 ) is overruled and the Magistrate Judge's order is affirmed; Plaintiff's objection to the Magistrate Judge's recommendation to deny his Motion for Summary Judgment (Filing No . 78 ) is overruled and the motion is denied without prejudice; and Plaintiff's objection to the Magistrate Judges recommendation to deny his Motion for Default Judgment (Filing No. 78 ) is overruled and the motion is denied. Signed by Judge Lyle E. Strom on 5/11/11. {order served via regular mail on all non-ecf parties}(nas)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
AKTHAM ABUHOURAN,

)
)
Plaintiff,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
______________________________)

9:04CV1023

MEMORANDUM AND ORDER

This matter is before the Court on the Objection
(Filing No. 89) to Magistrate Judge Treece’s ReportRecommendation and Order (Filing No. 85) regarding plaintiff
Aktham Abuhouran’s Motion for Appointment of Counsel (Filing No.
77), Motion for Default Judgment (Filing No. 78), and Motion for
Summary Judgment (Filing No. 78).

Plaintiff objects to Judge

Treece’s order, which denied without prejudice plaintiff’s
request for appointment of counsel.

Plaintiff also objects to

Judge Treece’s recommendations to deny without prejudice
plaintiff’s motion for summary judgment and to deny plaintiff’s
motion for default judgment.
A.

Appointment of Counsel
As a non-dispositive matter, a magistrate judge’s

denial of a motion for appointment of counsel will only be set
aside if the ruling was clearly erroneous or contrary to law.
Fed. R. Civ. P. 72(a); Arista Records, LLC v. Doe 3, 604 F.3d
110, 116 (2d Cir. 2010).

Plaintiff seeks to have counsel

appointed pursuant to 28 U.S.C. § 1915(e), which provides: “The

court may request an attorney to represent any person unable to
afford counsel.”

When determining whether to appoint counsel for

an indigent litigant, courts should consider “‘whether the
indigent’s position seems likely to be of substance,’ then assess
the litigant’s competence to proceed pro se, the complexity of
the issues, and additionally ‘any special reason in that case why
appointment of counsel would be more likely to lead to a just
determination.’”

Machadio v. Apfel, 276 F.3d 103, 107-08 (2d

Cir. 2002) (quoting Wenger v. Canastota Cent. Sch. Dist., 146
F.3d 123, 125 (2d Cir. 2002)).
Upon review, the Court finds Judge Treece used the
proper legal standard for evaluating plaintiff’s request for
appointment of counsel and his ruling was not contrary to law.
Nor was Judge Treece’s determination clearly erroneous.

Rather,

Judge Treece’s rationale was reasonable given the posture of the
case and specifically recognized plaintiff’s request for counsel
may later be granted if circumstances change.

The Court will

overrule plaintiff’s objection and will affirm Judge Treece’s
ruling on this issue.
B.

Summary Judgment/Default Judgment
Plaintiff’s motions for default judgment and summary

judgment are dispositive motions.

Under Fed. R. Civ. P. 72(b), a

magistrate judge may only recommend a disposition, and, if
properly objected to, the district court reviews de novo the

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recommendation.

Fed. R. Civ. P. 72(b); Arista Records, 604 F.3d

at 116.
In recommending the denial of plaintiff’s motion for
summary judgment, Judge Treece stated plaintiff failed to meet
his burden of providing admissible evidence of material facts
entitling plaintiff to summary judgment.

Report-Recommendation

and Order, Filing No. 85, at 7 (citing FDIC v. Giammettei, 34
F.3d 51, 54 (2d Cir. 1994), and Feurtado v. City of New York, 337
F. Supp. 2d 593, 599 (S.D.N.Y. 2004)); see also Fed. R. Civ. P.
56(c)(1).

In recommending the denial of entry of a default

judgment in plaintiff’s favor, Judge Treece recognized plaintiff
had failed to adhere to the two-step process for obtaining a
default judgment under Fed. R. Civ. P. 55.

Judge Treece also

cited the Second Circuit’s disfavor for default judgments and
preference for resolving disputes on the merits.

Id. at 8

(citing Robinson v. Santuary Music, 383 F. App’x 54, 58 (2d Cir.
2010), and Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 174
(2d Cir. 2001)).
After conducting de novo review, the Court finds
plaintiff’s motions for summary judgment and for default judgment
should be denied.

Regarding the summary judgment motion, Judge

Treece correctly reasoned plaintiff’s motion should be denied for
lack of admissible evidence in the record indicating no genuine
issues of material fact exist.

Regarding the default judgment

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motion, Judge Treece also correctly reasoned it would be
inappropriate to allow plaintiff to skip the two-step procedure
for obtaining a default judgment.

Moreover, even if allowing

plaintiff to skip the default judgment procedure was appropriate,
the Court would likely set aside the entry of default and the
default judgment pursuant to Fed. R. Civ. P. 55(c) and Fed. R.
Civ. P. 60(b), respectively.
IT IS ORDERED that plaintiff’s Objection (Filing No.
89) to the magistrate judge’s Report-Recommendation and Order
(Filing No. 85) is overruled and denied as follows:
1) Plaintiff’s objection to the
magistrate judge’s denial of his
Motion to Appoint Counsel (Filing
No. 77) is overruled and the
magistrate judge’s order is
affirmed;
2) Plaintiff’s objection to the
magistrate judge’s recommendation
to deny his Motion for Summary
Judgment (Filing No. 78) is
overruled and the motion is denied
without prejudice; and
3) Plaintiff’s objection to the
magistrate judge’s recommendation
to deny his Motion for Default
Judgment (Filing No. 78) is
overruled and the motion is denied.
DATED this 11th day of May, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
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