Bennett v. Lew
DECISION AND ORDER: ORDERED that plaintiff's request that this action be given the "proper heading" and that the Court show cause why the action should not "be placed on the proper side of the court which is the private side&qu ot; (Dkt. No. 13 ) is DENIED. ORDERED that plaintiff's motion for appointment of counsel (Dkt. No. 13 ) is DENIED without prejudice. ORDERED that in response to plaintiff's written demand (Dkt. No. 13 ), the Clerk shall note plaintif f's demand for a jury trial on the docket report. ORDERED that plaintiff's request for discovery (Dkt. No. 13 ) is DENIED. ORDERED that plaintiff's motion (Dkt. No. 13 ) is DENIED in all other respects. Signed by U.S. District Judge Mae A. D'Agostino on 6/2/17. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Plaintiff, Pro Se
P.O. Box 300
Marcy, NY 13403
MAE A. D'AGOSTINO
United States District Judge
DECISION AND ORDER
Plaintiff Anthony Bennett commenced this action pro se by filing a pleading which he
referred to as a "Bill in Equity". Dkt. No. 1. Plaintiff, who is civilly confined at the Central New
York Psychiatric Center ("CNYPC"), also filed an application to proceed in forma pauperis.
Dkt. No. 6 ("IFP Application"). Plaintiff filed a subsequent submission entitled "Amended
Complaint to a Bill in Equity". Dkt. No. 9. In light of plaintiff's pro se status, his amended
pleading was liberally construed to be an amended civil rights complaint filed pursuant to 42
U.S.C. § 1983 ("Section 1983").1 The operative pleading is the amended complaint. Dkt. No.
9 ("Am. Compl."). By Decision and Order filed on May 26, 2017, plaintiff's IFP Application
In light of plaintiff's pro se status, the Court is required to read his submissions "to raise the strongest
arguments they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
was granted but following review of the amended complaint pursuant to 28 U.S.C. §
1915(e)(2)(B), plaintiff's claim under the Health Insurance Portability and Accountability Act of
1996 ("HIPAA"), Pub. L. 104-191, 110 Stat. 1936 was dismissed with prejudice; the Court
directed service of the amended complaint on Lucy Dawes with respect to plaintiff's
Fourteenth Amendment due process claim; all of the remaining claims were dismissed
without prejudice; and Jacob Lew and Deborah McCulloch were dismissed as defendants
without prejudice. Dkt. No. 14 (the "May 2017 Order").
Presently before the Court is plaintiff's submission entitled "Order to Show
Cause/Discovery". Dkt. No. 13. In part, plaintiff requests that this action be filed with "the
proper heading of 'Article-III district court of the United States'" and that the Court show cause
why this action cannot "be placed on the proper side of the court which is the private side."
Id. at 2. Plaintiff's submission also requests appointment of counsel, contains a demand for a
jury trial, and seeks discovery. Id. at 2-3, 10.
First, plaintiff argues that the Clerk's Office staff had "no authority to take it upon
themselves to change [plaintiff's] filing . . . which was a Bill in equity concerning trust
business; not a 1983 civil action in the Public Sector." Dkt. No. 13 at 2. Plaintiff asks the
Court to "show cause as to why [plaintiff] can not have [his] case placed on the Private side of
the court with the Article-III heading and a proper hearing in chambers with [plaintiff] present."
Id. at 3; see also Dkt. No. 16 at 5 (asking the Court to "correct this displayed foolishness and
put everything on its proper side"). As plaintiff was advised in the May 2017 Order, and in a
previous habeas corpus proceeding that he filed in this District:
Although petitioner demands to proceed in "equity" as a "private citizen" in the
"Chancery Division" of the Court, no such proceeding exists. The Federal
Rules of Civil Procedure, in effect since 1938, "abolished the distinction
between actions at law and suits in equity[.]" Fed. R. Civ. P. 1, Advisory
Committee Notes. The Rules specify that there is "one form of action - the civil
action." Fed. R. Civ. P. 2; Russo v. Hickenlooper, No. 1:15-CV-1740, 2016 WL
67568 at *3 (D. Colo. Jan. 6, 2016). "In other words, it no longer matters
whether the action would have been considered one in equity or in law" prior to
the enactment the Federal Rules of Civil Procedure because those rules "apply
to all actions filed in the United States District Courts[.]" Dickinson v. Granade,
No. 1:16-CV-0153, 2016 WL 3647181 at *7 (S.D. Ala. Jun. 1, 2016), adopted by
2016 WL 3637093 (S.D. Ala. Jun. 30, 2016).
May 2017 Order at 13 (citing Bennett v. McCulloch, No. 9:16-CV-1437 (BKS/DJS), Dkt. No. 9
at 6). Accordingly, the Court denies plaintiff's request that the "proper heading" be placed on
this action and that the Court show cause why this action should not "be placed on the proper
side of the court which is the private side." If plaintiff does not want this action to proceed
further as a Section 1983 action, he may submit a written motion to voluntarily dismiss this
Second, plaintiff requests appointment of counsel. Dkt. No. 13 at 2 ("requesting a
Solicitor of the court be assigned to [him] as counsel for this Bill filed in equity"). In Terminate
Control Corp. v. Horowitz, 28 F.3d 1335 (2d Cir. 1994), the Second Circuit reiterated the
factors that a court must consider in ruling upon such a motion. In deciding whether to
appoint counsel, the court should first determine whether the indigent's position seems likely
to be of substance. If the claim meets this threshold requirement, the court should then
consider a number of other factors in making its determination. Terminate Control Corp., 28
F.3d at 1341 (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)). Of these
criteria, the most important is the merits, i.e., "whether the indigent's position was likely to be
of substance." McDowell v. State of N.Y., No. 91 CIV. 2440, 1991 WL 177271, at *1
If plaintiff submits such a motion, and it is granted, the Clerk of the Court will be directed to close this
(S.D.N.Y. Sep. 3, 1991) (quoting Cooper v. A. Sargenti & Co., Inc., 877 F.2d 170, 172 (2d
Cir. 1989)). Indigents do not have to demonstrate that they can win their cases without the
aid of counsel; they do have to show likely merit. Id.
This action was only recently commenced. The defendant has not been served or
responded to the allegations in the amended complaint, and the only facts upon which this
Court may base its decision as to whether this lawsuit is of substance are those portions of
plaintiff's amended complaint wherein he states the facts surrounding his claim. Where a
plaintiff does not provide a court with evidence, as opposed to mere allegations, relating to
his or her claims, the party does not meet the first requirement imposed by the Second Circuit
relative to applications seeking appointment of pro bono counsel. See Harmon v. Runyon,
No. 96-Civ.-6080, 1997 WL 118379 (S.D.N.Y. Mar. 17, 1997).
Plaintiff's motion for appointment of counsel is denied without prejudice. After the
defendant has responded to the allegations in the amended complaint, plaintiff may choose
to file a new motion for appointment of counsel, at which time the Court might be better able
to determine whether such appointment is warranted in this lawsuit.
Third, plaintiff's submission is liberally construed as containing a written demand for a
jury trial pursuant to Rule 38 of the Federal Rule of Civil Procedure. Dkt. No. 13 at 3. Rule
38(b) states that "[on] any issue triable of right by a jury, a party may demand a jury trial by:
(1) serving the other parties with a written demand--which may be included in a pleading--no
later than 14 days after the last pleading directed to the issue is served; and (2) filing the
demand in accordance with Rule 5(d)." Fed. R. Civ. P. 38(b). "'[T]he last pleading directed
to' an issue is not the pleading that raises the issue, it is the pleading that contests the issue.
Normally, that pleading is an answer, or, with respect to a counterclaim, a reply." McCarthy
v. Bronson, 906 F.2d 835, 840 (2d Cir. 1990). Because defendant has not answered the
amended complaint, the fourteen days set forth in Fed. R. Civ. P. 38(b) have not started to
run. See Windsurfing Int'l, Inc. v. Ostermann, 534 F. Supp. 581, 585-86 (S.D.N.Y. 1982).
Therefore, in response to plaintiff's request that the Court note plaintiff's demand for a jury
trial, the Clerk of the Court will be directed to note plaintiff's demand for a jury trial on the
Fourth, plaintiff's request for discovery (Dkt. No. 13 at 10) is denied as premature as
the defendant has not been served or appeared in this action. If and when defendant has
submitted an answer to plaintiff's amended complaint, the Court will issue a Mandatory
Pretrial Discovery and Scheduling Order outlining the terms of discovery and requiring the
parties to provide certain mandatory disclosure. Once plaintiff receives mandatory
disclosure, prior to serving additional discovery, he should review the disclosure thoroughly to
determine whether the disclosure might in fact satisfy all of plaintiff's discovery needs. If,
after reviewing the mandatory disclosure, plaintiff still wishes to conduct additional discovery,
plaintiff is advised that discovery is conducted directly between the parties. Plaintiff may refer
to the Federal Rules of Civil Procedure, Rule 26 et seq., for guidance in drafting and serving
Finally, the Court has reviewed the remainder of plaintiff's submission and finds that it
presents no basis for judicial relief. Therefore, plaintiff's submission is denied in all other
Plaintiff will only be entitled to a trial by jury if this action survives any dispositive motion which might
WHEREFORE, it is hereby
ORDERED that plaintiff's request that this action be given the "proper heading" and
that the Court show cause why the action should not "be placed on the proper side of the
court which is the private side" (Dkt. No. 13) is DENIED; and it is further
ORDERED that plaintiff's motion for appointment of counsel (Dkt. No. 13) is DENIED
without prejudice; and it is further
ORDERED that in response to plaintiff's written demand (Dkt. No. 13), the Clerk shall
note plaintiff's demand for a jury trial on the docket report; and it is further
ORDERED that plaintiff's request for discovery (Dkt. No. 13) is DENIED; and it is
ORDERED that plaintiff's motion (Dkt. No. 13) is DENIED in all other respects; and it is
ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated: June 2, 2017
For example, plaintiff requests "true and correct" copies of the oaths of office for the undersigned, for
the Magistrate Judge assigned to this action, and for one of the deputy clerks for this District, along with a
"surety, performance bond and/or blanket bond" to "indemnify" plaintiff. Dkt. No. 13 at 7.
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