Flemming v. Rendle et al

Filing 32

ORDER: ORDERED that the Order and Report-Recommendation (Dkt. No. 29 ) is ADOPTED in its entirety. ORDERED that defendants' motion to dismiss (Dkt. No. 22 ) is DENIED. ORDERED that defendants shall file an appropriate responsive pl eading within the time allotted under the rules. ORDERED that Flemming's request for appointment of counsel and discovery (Dkt. No. 31 ) is DENIED without prejudice. Signed by Senior Judge Gary L. Sharpe on 3/22/16. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
WOODROW FLEMMING,
Plaintiff,

9:14-cv-384
(GLS/ATB)

v.
RICHARD RENDLE et al.,
Defendants.
________________________________
ORDER
The above-captioned matter comes to this court following an Order
and Report-Recommendation (R&R) by Magistrate Judge Andrew T.
Baxter, duly filed on August 13, 2015. (Dkt. No. 29.) Following fourteen
days from the service thereof, the Clerk has sent the file, including any and
all objections filed by the parties herein.
While plaintiff pro se Woodrow Flemming filed a document that he
labeled “Objection to Report and Recommendation,” (Dkt. No. 31), the
R&R recommends a disposition that is fully favorable to Flemming.
Accordingly, and having reviewed the R&R for clear error, it is adopted in
its entirety. However, within his “objection,” Flemming does seek
appointment of counsel and discovery. (Id. at 2.) To the extent

Flemming’s submission can be construed as a motion, it is denied without
prejudice.
Although the constitution guarantees indigent litigants “meaningful
access” to the courts, “no court has yet held ‘meaningful access’ to mean
that indigents must always be supplied with counsel in civil as well as
criminal cases.” Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986).
The district court may deny an application for counsel, without prejudice, if
it is unable to determine that plaintiff's claims is “likely to be of substance.”
Allah v. Michael, 506 F. App’x 49, 52 (2d Cir. 2012) (internal quotation
marks and citation omitted). For that very reason, Flemming’s request for
counsel is denied without prejudice. As for discovery, because no answer
had been interposed before the motion to dismiss was filed, Flemming was
not entitled to any discovery earlier in this action. Following, the
interposition of a responsive pleading by defendants, the litigation can
proceed in the ordinary way.
In light of the foregoing, it is hereby
ORDERED that the Order and Report-Recommendation (Dkt.
No. 29) is ADOPTED in its entirety; and it is further
ORDERED that defendants’ motion to dismiss (Dkt. No. 22) is
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DENIED; and it is further
ORDERED that defendants shall file an appropriate responsive
pleading within the time allotted under the rules; and it is further
ORDERED that Flemming’s request for appointment of counsel and
discovery (Dkt. No. 31) is DENIED without prejudice; and it is further
ORDERED that the clerk of the court serve a copy of this order upon the
parties in accordance with this court’s Local Rules.
IT IS SO ORDERED.
March 22, 2016
Albany, New York

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