Dizak v. Hawks et al
Filing
277
DECISION AND ORDER: Plaintiff's motion for appointment of counsel andfor reconsideration of the Court's January 13, 2020 Decision and Order, Dkt. No. 267 , is DENIED in all respects. The Clerk of the Court is directed to close the file in this matter. Signed by Senior Judge Thomas J. McAvoy on October 27, 2020. (Copy served via regular mail on plaintiff)(rep)
Case 9:15-cv-01171-TJM-TWD Document 277 Filed 10/27/20 Page 1 of 9
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
STUART DIZAK,
Plaintiff,
v.
9:15-CV-1171
B. HAWKS, and D. ROGERS,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION and ORDER
I.
INTRODUCTION
On January 13, 2020, the Court issued a Decision and Order deny ing Plaintiff’s
motion for a new trial and granting, in part, Defendants’ application for a bill of costs. See
Dkt. No. 266. Thereafter, Plaintiff filed a letter-motion in which he requests
reconsideration of the January 13, 2020 Decision and Order, as well as appointment of
counsel. Dkt. No. 267. Plaintiff filed two (2) supplements to that motion, see Dkt. Nos.
268, 269, and Defendants opposed the motion to the extent it sought reconsideration. See
Dkt. No. 270. Plaintiff then filed a Reply, Dkt. No. 271, and several supplements to the
Reply. See Dkt. Nos. 273, 274, 275, 276. For the reasons that f ollow, Plaintiff’s motion is
denied.
II.
BACKGROUND
The Court presumes familiarity with the procedural background of this case as well
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as with the Court’s January 13, 2020 Decision and Order.
III.
DISCUSSION
a. Appointment of Counsel
Plaintiff moves for appointment of counsel. Dkt. No. 267, p. 1. “In non-criminal
cases federal courts have the authority to appoint counsel, but generally they are not
required to do so. The determination of whether appointment of counsel is necessary
rests with the discretion of the court.” In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir.
1984)(citations omitted); see also Burgos v. Hopkins, 14 F.3d 787, 789 (2d
Cir.1994)(“There is no requirement that an indigent litigant be appointed pro bono counsel
in civil matters, unlike most criminal cases.”). It is important to realize that “‘[v]olunteer
lawyer time is a precious commodity’ that ‘should not be allocated arbitrarily.’” Simcoe v.
Gray, No. 10-CV-6531, 2012 WL 1044505, at *5 (W.D.N.Y. Mar. 28, 2012)(quoting
Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir.1989)). In determ ining whether to
appoint counsel, the Court considers the factors set forth by the Second Circuit in Hodge
v. Police Officers, 802 F.2d 58, 60–62 (2d Cir.1986). 1
Consideration of the Hodge factors does not weigh in favor of appointment of
counsel for purposes of the reconsideration motion. While Plaintiff asserts that he is
currently residing in a veteran’s home without access to “law library clerks,” and is being
treated for “an advancing stage of dementia,” Dkt. No. 267, the issues on the motion for
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These factors include: (1) whether the party's claim has substantial merit; (2) whether the nature of
the factual issues requires an investigation, and whether the party's ability to investigate is inhibited; (3)
whether the claim's factual issues turn on credibility, which benefits from the skills of those trained in
presentation of evidence and cross-examination; (4) the party's overall ability to present its case; and (5)
whether the legal issues presented are complex. Hodge, 802 F.2d at 60–61.
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reconsideration are not novel or complex. In addition, Plaintiff asserts that he has been
assisted by an attorney who “wishes to remain anonymous.” Id. Further, as evidenced by
Plaintiff’s pro se motion for a new trial, his pro se opposition to Defendants’ application to
tax costs, and his multiple pro se submissions relative to the instant motion, Plaintiff has
demonstrated his capability to grasp the pertinent legal and factual issues, and present
cogent arguments related thereto. Plaintiff has also demonstrated his ability to marshal
evidence in his favor, as indicated by his submission of documents from his disciplinary,
medical and NYS Parole Board files, see Dkt. Nos. 267, 269-1, 274, 275, a portion of a
letter from Rabbi Shmuel Spritzer supporting Plaintiff’s challenge to his trial counsel’s
decision to call Rabbi Susan Gulack as a witness, see Dkt. Nos. 268 at p. 2; 275 at p. 6
(both contain the same partial letter), and an August 20, 2020 polygraph test submitted in
support of his challenge to his state criminal conviction. See Dkt. No. 276. Thus, it
appears that Plaintiff has been able to effectively litigate this action since trial when the
assignment of his pro bono counsel ended. Finally, for reasons discussed below,
Plaintiff’s motion for reconsideration does not have substantial merit. The Court is
unaware of any special reason why appointment of counsel at this time would be more
likely to lead to a just determination of this litigation. Accordingly, Plaintiff’s motion for
appointment of counsel is denied.
a. Motion for Reconsideration
The Court turns to the substantive arguments in Plaintiff’s motion for
reconsideration.
1. Standard of Review
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Local Rule 7.1(g) governs motions for reconsideration. See N.D.N.Y. L.R. 7.1(g)
(“Motion for Reconsideration. Unless Fed. R. Civ. P. 60 otherwise governs, a party may
file and serve a motion for reconsideration or reargument no later than FOURTEEN DAYS
after the entry of the challenged judgment, order, or decree.”)(emphasis omitted). “‘The
standards for motions for reconsideration under local district court rules are very similar to
those used for motions to reconsider under Rule 60(b).’” Cambridge Valley Machining, Inc.
v. Hudson MFG LLC, No. 1:18-CV-1022, 2020 W L 5878444, at *2 (N.D.N.Y. Oct. 2,
2020)(quoting Tomassini v. FCA US LLC, No. 3:14-CV-1226 (MAD/DEP), 2018 W L
5842995, at *1 (N.D.N.Y. Nov. 8, 2018) (citation omitted)). When a party files a motion for
reconsideration, "[t]he standard for granting such a motion is strict, and reconsideration
will generally be denied unless the moving party can point to controlling decisions or data
that the court overlooked–matters, in other words, that might reasonably be expected to
alter the conclusion reached by the court." Shrader v. CSX Transp., 70 F.3d 255, 257 (2d
Cir. 1995). Such a motion is "not a vehicle for relitigating old issues, presenting the case
under new theories, securing a rehearing on the merits, or otherwise taking ‘a second bite
at the apple[.]'" Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 41 (2d Cir.
2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)).
Reconsideration may be granted when the moving party shows "‘an intervening change in
controlling law, the availability of new evidence, or the need to correct a clear error or
prevent manifest injustice.'" Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245,
1255 (2d Cir. 1992)(quoting 18 C. Wright, A. Miller & E. Cooper, F EDERAL PRACTICE &
PROCEDURE § 4478 at 790); see also Cambridge Valley Machining, 2020 WL 5878444, at
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*2)(“As under the federal rules, [N.D.N.Y. Local Rule 7.1(g)] recognizes only three
circumstances under which ‘[a] court may justifiably reconsider its previous ruling[:] if[ ] (1)
there is an intervening change in the controlling law; (2) new evidence not previously
available comes to light; or (3) it becomes necessary to remedy a clear error of law or to
prevent manifest injustice.’”)(quoting Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y.
1995), in turn citing Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.
1983), cert. denied, 464 U.S. 864 (1983)).
2. Decision to Call Rabbi Gulack
Plaintiff asks the Court to reconsider its decision on Plaintiff’s motion for a new trial
because, he contends, his counsel’s decision to call Rabbi Susan Gulack as a w itness at
trial “intentionally subvert[ed] the trial.” Dkt. No. 267 at p. 1; see Dkt. No. 275, at pp. 4-5
(making the same argument). Plaintiff’s objection on this issue was thoroughly addressed
in the Court’s January 13, 2020 Decision and Order. Dkt. No. 266, pp. 7-11. Specif ically,
the Court found that pro bono counsel did not breach his duty of representation or deprive
Plaintiff of a fair trial by calling Rabbi Gulack as a witness. Id. It is well-established that
Plaintiff may not use a motion for reconsideration to re-litigate issues that have already
been decided by the Court. Here, Plaintiff merely reiterates the objection he previously
advanced on his motion for a new trial and, therefore, does not present a basis for
reconsideration. Further, neither Plaintiff’s motion nor any of his other submissions
present any previously unavailable evidence or intervening change in controlling law on
this issue that would warrant reconsideration of the Court’s prior decision. While Plaintiff
presents a partial letter from Rabbi Spritzer who agrees with Plaintiff’s position that Rabbi
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Gulack should not have been called as a witness, see Dkt. Nos. 268 at p. 2; 275 at p. 6,
this is not new evidence but merely a third-party’s opinion supporting the argument
Plaintiff presented on the motion for a new trial. This is not a proper basis for
reconsideration. Accordingly, for the reasons discussed above, Plaintiff’s motion for
reconsideration based on pro bono counsel’s decision to call Rabbi Gulack as a trial
witness is denied.
3. Taxation of Costs
Plaintiff also objects to the taxation of costs against him, alleging that his counsel
told him in a letter that “defendants would be responsible for all costs” they incurred in the
litigation. Dkt. No. 267 at p. 1. However, this objection to the taxation of Defendants’ costs
was thoroughly addressed in the January 13, 2020 Decision and Order. See Dkt. No. 266,
pp. 15-19. The Court found that pro bono counsel’s letter to Plaintif f did not state that the
Defendants would decline to seek costs against Plaintiff if they prevailed at trial. Id.
Again, the instant motion merely reiterates an objection previously advanced by Plaintiff in
his motion for a new trial. As indicated above, Plaintiff may not use a motion for
reconsideration to re-litigate issues that have already been decided by the Court or to take
a second bite at the proverbial apple. Further, Plaintiff’s motion and his supplemental
filings do not present any previously unavailable evidence or intervening change in
controlling law that would warrant reconsideration of the Court’s prior decision on this
issue. Thus, the motion in this regard is denied.
4. Challenges to Underlying Conviction & Parole Board Determinations
A large portion of Plaintiff’s filings are directed to challenging his underlying New
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York State criminal conviction and to New York State Parole Board determinations relative
to his incarceration. However, as the Court stated in the January 13, 2020 Decision and
Order, “[t]his case is not the proper forum to litigate a petition for a writ of habeas corpus.”
Dkt. No. 266, p. 14. 2 Plaintiff’s current challenges to his underlying New York State
criminal conviction and to New York State Parole Board determinations relative to his
incarceration are not properly before the Court in this case. Thus, they do not provide a
basis for reconsideration.
5. Other Challenges to Pro Bono Counsel’s Performance
In his Reply, Plaintiff asserts that pro bono counsel failed to properly address his
injury from the altercation underlying his claims, that is, his onset of dementia purportedly
caused by the head injury Plaintiff sustained on the date in issue. See Dkt. 271. As
indicated above, a motion for reconsideration is not a vehicle for relitigating old issues or
presenting the case under new theories. To the extent Plaintiff is asserting that this is a
basis for a new trial, and putting aside for the moment that Plaintiff cannot raise new
issues at this juncture, his argument is without merit. Even accepting that counsel failed to
properly explore Plaintiff’s claimed injury, Plaintiff suffered no prejudice by this deficiency
because the jury found that neither defendant violated Plaintiff’s constitutional rights.
Moreover, as the Court stated in its previous decision, a claim of ineffective assistance of
counsel is an insufficient ground for relief in a civil matter. See Dkt. 266, pp. 10-11 (citing
Singh v. Home Depot U.S.A., Inc., 580 F. App'x 24, 25 (2d Cir. 2014)(“[A] lawyer's
2
Further, the Court indicated that “[o]n September 9, 2019, Dizak filed a petition for a writ of habeas
corpus challenging his New York State conviction” which “[t]he Hon. Mae A. D'Agostino, U.S. District Judge,
transferred . . . to the Western District of New York.” Dkt. No. 266, p. 14, n. 7 (citing Dizak v. Hennessy,
9:19-cv-01104 (MAD/DJS), Dkt. Nos. 1, 8).
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purported shortcomings present no cognizable ground for relief in a civil matter, where the
Sixth Amendment right to counsel does not apply.”); Espaillat v. Cont'l Express, Inc., 33 F.
App'x 567, 568–69 (2d Cir. 2002)(“Ineffective assistance of counsel is not a proper ground
for relief in a civil matter.”)(citing United States v. Coven, 662 F.2d 162, 176 (2d
Cir.1981)). Thus, Plaintiff’s motion in this regard is denied.
Plaintiff also argues in a post-Reply addendum that his counsel performed
deficiently by failing to address whether the defendants were justified in their use of force
because, they asserted, they used necessary force when Plaintiff attempted to flee. Dkt.
No. 275, p. 3. The Court previously examined this same argument and rejected it as a
ground for a new trial. See Dkt. No. 266, pp. 11-12. Plaintiff presents no new evidence in
support of this argument, rather replying on the Misbehavior Report he was issued that did
not bring a charge against him for fleeing or escape. However, this Misbehavior Report
was presented at trial and considered by the Court in reaching its decision to deny
Plaintiff’s motion for a new trial. See id. There, the Court noted that pro bono counsel
addressed this issue in both his opening statement and closing argument to the jury,
asserting that such an allegation was illogical in the prison setting and unsupported by the
evidence. Id. Further, the Court found that “despite [pro bono counsel’s] ef forts to
challenge the defendants’ assertion, the jury was entitled to accept the defendants’
contention that Dizak attempted to step away from the correction officers, thereby
supporting the Tier III charges of failure to comply with a direct order and/or refusal of a
search/frisk. Although a matter of semantics, the jury could have concluded that Dizak’s
conduct in stepping away from the officers amounted to an attempt to flee albeit not an
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attempt to escape from Greene [Correctional Facility.]” Id. As indicated above, a motion
for reconsideration is not a vehicle to relitigate previously decided issues. Thus, Plaintiff’s
motion on this ground is denied.
IV.
CONCLUSION
For the reasons set forth above, Plaintiff’s motion for appointment of counsel and
for reconsideration of the Court’s January 13, 2020 Decision and Order, Dkt. No. 267, is
DENIED in all respects.
The Clerk of the Court is directed to close the file in this matter.
IT IS SO ORDERED.
Dated:October 27, 2020
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