Johnson v. Brown

Filing 21

ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 19 ) of Magistrate Judge David R. Homer filed September 14, 2011 is ACCEPTED in its entirety for the reasons stated therein. ORDERED, that defendant Brown's motion to dismiss the complaint (Dkt. No. 11 ) is DENIED AS MOOT upon the filing of plaintiff's signed second amended complaint. Signed by Judge Gary L. Sharpe on 9/29/11. (Attachments: # 1 Report-Recommendation and Order) (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

MICHAEL JOHNSON,
Plaintiff,

No. 11-CV-188
(GLS/DRH)

v.
WILLIAM D. BROWN, Supt., Eastern Correctional
Facility; CAPTAIN JOHN DOE; SGT. JOHN DOE,
Defendants.

APPEARANCES:

OF COUNSEL:

MICHAEL JOHNSON
Plaintiff pro se
04-A-4042
Elmira Correctional Facility
P.O. Box 500
Elmira, New York 14902
HON. ERIC T. SCHNEIDERMAN
Attorney General for the
State of New York
Attorney for Defendants
The Capitol
Albany, New York 12224

C. HARRIS DAGUE, ESQ.
Assistant Attorney General

DAVID R. HOMER
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER1
I.

Introduction
Plaintiff pro se Michael J. Johnson, an inmate in the custody of the New York State

Department of Corrections and Community Supervision, brings this action pursuant to 42

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This matter was referred to the undersigned for report and recommendation pursuant
to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c).

U.S.C. § 1983 alleging that defendants violated his due process rights under the Fifth and
Fourteenth Amendment to the United States Constitution by prosecuting him and confining
him in Special Housing Unit ("SHU") on two separate Tier III misbehavior reports stemming
from a single incident. See Dkt. No. 5. In addition to Eastern Correctional Facility
Superintendent William D. Brown, the amended complaint names as defendants Captain
John Doe and Sgt. John Doe. Id. at 1-2.
Presently pending are defendant Brown's motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6), plaintiff's motion for leave to file a second amended complaint, and plaintiffs motion
for appointment of counsel. Dkt. Nos. 11, 13, 14.
For the following reasons, plaintiff's motion to file a second amended complaint is
granted, his motion for appointment of counsel is denied, and it is recommended that
defendant Brown's motion to dismiss be denied as moot.
II.

Discussion
A motion to amend a pleading is governed by Rule 15 of the Federal Rules of Civil

Procedure. Rule 15 states that leave to amend shall be freely given "when justice so
requires." Fed. R. Civ. P. 15(a)(2). The decision to grant or deny a motion to amend is
committed to the sound discretion of the trial court, and the court’s decision is not subject to
review on appeal except for abuse of discretion. See Fielding v. Tollaksen, 510 F.3d 175,
179 (2d Cir. 2007).
Plaintiff filed his motion to amend shortly after defendant Brown filed a motion to
dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. See Dkt. No. 14. Upon review of the proposed amended complaint submitted by

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plaintiff in support of his motion, it appears that he now seeks to assert Eighth Amendment
deliberate indifference claims arising out of the SHU confinement imposed in the disciplinary
proceedings complained of. See Dkt. No. 14-1 at 11. Plaintiff has also revised his pleading
to set forth the relevant facts in separately numbered paragraphs. Compare Dkt. No. 5 with
Dkt. No. 14-1.
Counsel has advised the Court that defendant Brown "takes no formal position" with
respect to plaintiff's motion to amend. Dkt. No. 15. Counsel requests, however, that if the
motion is granted, defendant’s motion to dismiss "be heard as still wholly applicable to the
Second Amended Complaint" and that defendant Brown be afforded the opportunity to make
a further submission addressing any new issues raised in that pleading. Id.
Based upon the Court’s review of the file, and in light of the fact that defendant Brown
is not opposed to the requested relief, plaintiff’s motion to amend is granted. The Clerk is
directed to send a copy of the proposed second amended complaint to plaintiff to be signed
and returned to the Clerk for filing in this action as the second amended complaint.
"Typically, the filing of an amended complaint following the filing of a motion to dismiss
the initial complaint moots the motion to dismiss." Byng v. Campbell, No. 9:07-CV-471,
Report-Recommendation, 2008 WL 152708, at *1 (N.D.N.Y. Dec. 16, 2008) (Homer, M.J.),
adopted, 2008 WL 152708, at *1 (N.D.N.Y. Jan. 21, 2009) (Sharpe, J.) (quoting Brown v.
Napoli, No. 07-CV-838, 2008 WL 4507590, at *2 (W.D.N.Y. Sep. 29, 2008)).
Because plaintiff's motion to amend has been granted, the Court recommends that
upon the filing of the signed second amended complaint, defendant Brown's motion to

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dismiss (Dkt. No. 11) be denied as moot.2
Turning to plaintiff's motion for appointment of counsel (Dkt. No. 13), courts cannot use
a bright-line test in determining whether counsel should be appointed on behalf of an indigent
party. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). As the Second Circuit
stated in Hodge v. Po/ice Officers, 802 F.2d 58 (2d Cir. 1986), "the district judge should first
determine whether the indigent's position seems likely to be of substance." Id. at 61. If the
claim satisfies that threshold requirement, a number of factors must be carefully considered
by the court in ruling upon such a motion. Among these factors are:
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.
Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge, 802
F.2d at 61-62). This is not to say that all, or indeed any, of these factors are controlling in a
particular case. Rather, each case must be decided on its own facts. Velasquez v. O'Keefe,
899 F.Supp. 972, 974 (N.D.N.Y. 1995) (citing Hodge, 802 F.2d at 61).
At this relatively early stage of the litigation, it is difficult for the Court assess the likely
merits of plaintiff's claims. Moreover, there is nothing in the record which demonstrates that
plaintiff is not able to effectively pursue this action. While it is possible that there will be
conflicting evidence implicating the need for cross-examination if this case proceeds to trial,
"this factor alone is not determinative of a motion for appointment of counsel." Velasquez,
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In the event this Court's recommendation is adopted, and defendant Brown's motion
to dismiss is denied, the Clerk is directed to return the file to this Court for review and to set
appropriate deadlines for consideration of defendant Brown's motion to dismiss the second
amended complaint.
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899 F.Supp. at 974 (citing Hodge, 802 F.2d at 61). Finally, this Court is not aware of any
special reason why appointment of counsel at this time would be more likely to lead to a just
determination of this litigation.
The Court therefore finds that, based upon the existing record in this case,
appointment of counsel is unwarranted.
III.

Conclusion
Wherefore, it is hereby
ORDERED that plaintiff’s motion for leave to file a second amended complaint (Dkt.

No. 14) is GRANTED. The Clerk of the Court is directed to send a copy of the proposed
second amended complaint (Dkt. No. 14-1) to plaintiff to be signed and returned to the Clerk
for filing in this action; and it is further
ORDERED that plaintiff is directed to submit a signed copy of his proposed second
amended complaint to the Clerk for filing within ten (10) days of the filing date of this ReportRecommendation and Order; and it is further
ORDERED that plaintiff's motion for appointment of counsel (Dkt. No. 13) is DENIED
WITHOUT PREJUDICE; and it is
RECOMMENDED that upon the filing of plaintiff's signed second amended complaint,
defendant Brown’s motion to dismiss the complaint (Dkt. No. 11) be DENIED AS MOOT.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the
foregoing report. Such objections shall be filed with the Clerk of the Court "within fourteen
(14) days after being served with a copy of the . . . recommendation." N.Y.N.D.L.R. 72.1(c)
(citing 28 U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT TO THIS REPORT WITHIN

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FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d
85, 89 (2d Cir. 1993); Small v. Sec’y of HHS, 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).

Dated: September 14, 2011
Albany, New York

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