Benitez v. Healy et al

Filing 119

ORDER. ORDERED that Benitez's motion (Dkt. No. 117 ) is DENIED in its entirety. Signed by Senior Judge Gary L. Sharpe on 1/3/2019. (Order mailed to plaintiff at Auburn Correctional Facility as well as Clinton Correctional Facility as directed via regular mail). (rar)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
HENRY BENITEZ,
Plaintiff,

9:15-cv-1179
(GLS/ATB)

v.
JAMES P. HEALY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Henry Benitez
Pro Se
97-A-2553
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 130211
FOR THE DEFENDANT:
HON. LETITIA JAMES
New York State Attorney General
The Capitol
1

RYAN W. HICKEY
Assistant Attorney General

Benitez’s address appears to have changed. In his notice of
appeal filing on September 26, 2018, Benitez lists an address of Clinton
Correctional Facility, P.O. Box 2000, Dannemora, New York 12929. (Dkt.
No. 104.) His latest motion uses the same address. (Dkt. No. 117,
Attach. 3.) However, Benitez has failed to file the required notice of
change of address, despite the fact that he has complied with that
requirement in the past. (Dkt. No. 56); see N.D.N.Y. L.R. 10.1(c)(2). To
ensure that Benitez receives this Order, the Clerk is hereby directed to
serve it at both Benitez’s address of record, as well as Benitez’s
presumed Clinton Correctional Facility address.

Albany, New York 12224

Gary L. Sharpe
Senior District Judge
ORDER
Plaintiff Henry Benitez, a pro se prisoner, moves this court to certify
that, pursuant to 28 U.S.C. § 753(f), his appeal is not frivolous and thus the
United States is obligated to pay transcript fees. (Dkt. No. 117 at 1.)
Benitez also requests that the trial transcript and certain trial exhibits “be
included in the district court’s record and transmitted to the Second Circuit
Court of Appeals for appeal purposes[.]” (Id. at 2.) For the following
reasons, Benitez’s motion is denied.
Section 753(f) provides, in pertinent part, that “[f]ees for transcripts
furnished in other proceedings2 to persons permitted to appeal in forma
pauperis shall also be paid by the United States if the trial judge or a circuit
judge certifies that the appeal is not frivolous (but presents a substantial
question).” “The standard for determining if an appeal presents a

2

“[O]ther proceedings” refers to proceedings other than criminal
proceedings, habeas proceedings, or proceedings commenced under 28
U.S.C. § 2255. See 28 U.S.C. § 753(f).
2

substantial question is whether, when judged on an objective basis, the
appeal (1) raises a question that is reasonably debatable and (2) whether
the transcript is necessary to the presentation of the appeal.” Abbas v.
Senkowski, No. 9:03–CV–476, 2008 WL 5129851, at *1 (N.D.N.Y. Dec. 5,
2008) (internal quotation marks and citation omitted).3
Here, even assuming that the transcript is necessary to the
presentation of the appeal,4 Benitez’s appeal does not raise a question that

3

Some courts in this Circuit hold that, under § 753(f), courts also
take into account the cost to the court of providing the requested
transcript. See Barnes v. Alves, 107 F. Supp. 3d 252, 256 (W.D.N.Y.
2015) (internal citation omitted). As explained below, the court holds that
Benitez’s appeal is frivolous because it does not raise a question that is
reasonably debatable, and the issue of cost is not decisive. In any event,
with the transcript costing an estimated $1,105.95, (Dkt. No. 118), the
court is unsure that any cost factor would cut in favor of Benitez.
4

As explained below, the gravamen of Benitez’s appeal is that the
court erred in appointing him trial counsel, and he would have done a
better job at trial representing himself. (Dkt. No. 117, Attach. 1 ¶¶ 30-33.)
Accordingly, his appeal seemingly centers on things that trial counsel did
not do and that Benitez would have done, as opposed to what happened
at trial. (Id. ¶¶ 25, 28 (alleging failures by trial counsel); ¶¶ 30-31 (alleging
what Benitez would have done pro se).) Thus the court is not necessarily
convinced that the transcript is necessary to the presentation of Benitez’s
appeal. See Philippeaux v. N. Cent. Bronx Hosp., No. 94 CIV. 3409, 1996
WL 167732, at *2 (holding transcript not necessary where issue for appeal
involved failure to introduce documents at trial). In any event, the court
need not reach this issue because Benitez has not raised a question that
is reasonably debatable. See Abbas, 2008 WL 5129851, at *1.
3

is reasonably debatable. See id. The issues Benitez intends to appeal are
“[w]hether the district court erred in appointing trial counsel for [Benitez]
sua sponte” and “[w]hether the district court’s failure to allow [Benitez] to
act pro se at trial substantially prejudiced [his] cause and deprived him of
his constitutional right to a fair trial.” (Dkt. No. 117, Attach. 1 ¶ 33.)
Regarding the second issue, (id. ¶ 33(b)), the district court did not fail
to allow Benitez to act pro se at trial, because Benitez never requested—in
any way, shape, or form—to represent himself at trial. Crucially, Benitez
makes no allegation that he notified the court (or anyone else), at any point
prior to the instant motion, that he wished to proceed pro se or even
considered doing so. (See Dkt. No. 117.)5 Benitez alleges that “[t]he
district court did not revisit its decision to appoint trial counsel for [Benitez],
nor did it inquire whether [Benitez] had been provided with the pretrial
submissions of counsel.” (Id. ¶ 20.) But Benitez makes no allegation that
he ever gave the court any reason to revisit its appointment of trial counsel

5

Frankly, Benitez’s allegation that he wished to represent himself
surprises the court, which observed firsthand the quality of representation
that he received at trial.
4

or inquire about pretrial submissions.6 “District judges are not mind
readers” and are not required “to conjure up questions never . . . presented
to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.
1985).
Furthermore, the appointment of counsel did not substantially
prejudice Benitez’s cause nor deprive him of his constitutional right to a fair
trial, as he alleges. (Dkt. No. 117, Attach. 1 ¶ 33(b).) As a civil litigant,
Benitez has no right to counsel. See U.S. Sec. & Exch. Comm’n v.
Hansen, 712 F. App’x 99, 100 (2d Cir. 2018) (citing Berrios v. N.Y.C. Hous.
Auth., 564 F.3d 130, 134 (2d Cir. 2009)). Benitez’s complaints about his
counsel’s performance, (Dkt. No. 117, Attach. 1 ¶¶ 25, 28, 30-31), amount
to Monday-morning-quarterbacking that is speculative at best. See Galvao
v. Gillette Co., No. 96-2062, 1997 WL 457671, at *3 (1st Cir. Aug. 12,
1997) (declining invitation by civil plaintiff to second guess counsel’s
strategic decisions). In sum, Benitez’s appeal is frivolous because it is
6

The court’s Order Appointing Counsel, (Dkt. No. 63), stated that
“[c]ounsel for the parties shall serve upon each other and the plaintiff pro
se, and file with the [c]ourt the pretrial submissions.” In October 2018,
well after trial was completed, Benitez motioned the court to request that
he be provided with the pretrial submissions. (Dkt. No. 113.) This was
the first time that the court was made aware of the issue and granted
Benitez’s motion. (Dkt. No. 114.)
5

“based not on what happened at trial but what, with the benefit of hindsight,
[Benitez] would have liked to do at trial.” Philippeaux v. N. Cent. Bronx
Hosp., No. 94 Civ. 3409, 1996 WL 167732, at *3 (S.D.N.Y. Apr. 10, 1996)
(refusing to certify appeal not frivolous under § 753(f)).
Regarding the first issue for appeal raised by Benitez, (Dkt. No. 117,
Attach. 1 ¶ 33(a)), the court did not err in appointing him trial counsel. The
Order Appointing Counsel explained that
[t]he [c]ourt has reviewed the entire file in this matter in
conjunction with the elements discussed in [N.D.N.Y. L.R.] 83.3(c)
as to the factors a court should consider in determining whether
to appoint counsel for a pro se litigant. Based upon such review,
th[e] [c]ourt finds that the services that Christian J. Soller, Esq.
could provide as “trial counsel” to the plaintiff herein would more
likely lead to a just determination of this action.
(Dkt. No. 63 at 1 (bolded font omitted).) The court recognizes that the
record does not contain any request by Benitez to appoint him counsel.
However, such an appointment is well within the court’s discretion. See 28
U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any
person unable to afford counsel.”)7; N.D.N.Y. L.R. 83.3(b)(2) (“Failure of a
party to make a written application for an appointed attorney shall not
7

Benitez’s motion to proceed in forma pauperis was granted in
November 2015, (Dkt. No. 6), which is obviously well before the court’s
Order Appointing Counsel was issued in July 2018, (Dkt. No. 63).
6

preclude appointment.”); see also King v. Curtis, 610 F. App’x 534, 539
(6th Cir. 2015) (recognizing “pro se litigants . . . are usually better off if
represented by counsel”). Moreover, the Order Appointing Counsel was
issued July 6, 2018, (Dkt. No. 63), and trial did not start until over a month
later, (see Dkt. Entry dated Aug. 20, 2018). It bears repeating that Benitez
had plenty of time to object to the appointment of counsel or raise any
issues regarding the same, and he has proven he knows how to contest
issues. (See, e.g., Dkt. No. 27 (motion to compel); Dkt. No. 39 (appeal of
magistrate judge decision).) Furthermore, even assuming appointing
counsel sua sponte constitutes error, such error would be harmless, for the
reasons discussed above. Benitez may be unhappy with the result of his
trial but cannot blame the process.8

8

Somewhat ironically, Benitez also complains that “[t]he district
court did not afford ‘trial counsel’ an opportunity to conduct discovery in
this action.” (Dkt. No. 117, Attach. 1 ¶ 14.) It would seem that Benitez is
arguing that he would have benefited from trial counsel’s ability to conduct
discovery, at the same time that he is arguing that he silently wished that
he did not have trial counsel. In any event, the Order Appointing Counsel
explains that “[b]ecause it was the plaintiff’s responsibility to conduct
discovery and because the discovery deadline in this matter . . . passed,
absent extraordinary circumstances ‘trial counsel’ shall not conduct any
further discovery in this action.” (Dkt. No. 63 at 1.) Benitez does not
allege that he or his trial counsel ever requested any additional discovery.
(See Dkt. No. 117, Attach. 1.)
7

Benitez’s request that “the designated trial exhibits be included in the
district court’s record and transmitted to the Second Circuit Court of
Appeals for appeal purposes” is also denied. (Dkt. No. 117 at 1-2.) This
court’s Trial Order clearly stated that “[i]t is the responsibility of the parties
to maintain the exhibits and to produce the exhibits for any appeal.” (Dkt.
No. 64 at 8.9) In a letter dated October 27, 2018, Benitez requested, of his
trial counsel, “the exhibits referenced in paragraph 2 of the Joint Pre-Trial
Stipulation.” (Dkt. No. 115, Attach. 2.) Trial counsel sent Benitez those
exhibits by letter dated November 5, 2018. (Id., Attach. 3.) Those exhibits
sent to Benitez include every single exhibit that he now designates.
(Compare Dkt. No. 117, Attach. 1 ¶ 34, with Dkt. No. 81, and Dkt. No. 155,
Attachs. 3-4.) Benitez offers no basis for the court to assume the
responsibility that it clearly states in its Trial Order belongs to the parties.10
Accordingly, it is hereby
ORDERED that Benitez’s motion (Dkt. No. 117) is DENIED in its

9

This citation refers to the CM/ECF page number.

10

In addition to 28 U.S.C. § 753(f), Benitez also cites 28 U.S.C.
§ 1915(c) and Federal Rules of Appellate Procedure 10(b) and 11(a),
none of which support Benitez’s request regarding exhibits. (Dkt. No. 117
at 1.)
8

entirety; and it is further
ORDERED that the Clerk provide a copy of this Order to the parties
in accordance with the Local Rules of Practice.
IT IS SO ORDERED.
January 3, 2019
Albany, New York

9