Barnes v. Pozzi et al

Filing 82

MEMORANDUM AND ORDER re: 79 APPLICATION for the Court to Request Counsel. For the foregoing reasons, Barnes' motion for the Court to appoint counsel to assist him, Docket Entry No. 79, is granted. The Clerk of Court is directed to appoint counsel from the pro bono panel to represent Barnes. SO ORDERED. Motions terminated 79 . (Signed by Magistrate Judge Kevin Nathaniel Fox on 5/1/2013) Copies Mailed By Chambers. (rsh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KHALID BARNES,
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Plaintiff,
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-against:
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COMMISSIONER POZZI, WARDEN
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AMICUCCI, A. W. SHERVECO, A . W.
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ORLANDO, CAPTAIN VINCENT
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CAMERA,
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Defendants.
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KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE

MEMORANDUM and ORDER
10 Civ. 2554 (JGK)(KNF)

Plaintiff Khalid Barnes (“Barnes”), proceeding pro se and in forma pauperis, brought this action
against the defendants pursuant to 42 U.S.C. § 1983, alleging that, while he was incarcerated at a
Westchester County Department of Corrections jail, the defendants subjected him to “unsafe housing
conditions, deliberate indifference to [his] medical needs, religious discrimination, retaliation for filing of
grievances and the Federal Civil Rights lawsuit, blatant violations of Attorney Client Privilege, racial
discrimination, violation of Plaintiff’s rights, constituting cruel and unusual punishment under the First,
Fifth, Eighth and Fourteenth Amendments of the United States Constitution.” Before the Court is Barnes’
application for the Court to appoint counsel to assist him in prosecuting this action.
According to Barnes, he “was arrested March 1, 2004 on an assortment of federal charges . . .
[and] was committed to the [custody] of the Westchester Department of Corrections . . . as a pre-trial
detainee.” Barnes alleges, inter alia, that he was subjected to several acts of retaliation, beginning in
March 2005, after he filed grievances about the “sub-standard conditions of confinement” in the
Westchester County jail where he was housed. Barnes contends that the retaliatory acts continued to be
perpetrated until he was transferred from the facility, in June 2006. However, Barnes maintains that,
periodically between June 2006 and February 2008, he was returned to the Westchester County jail
facility for appearances in the White Plains branch of this court and, during those stints at the jail, he was
subjected to retaliatory treatment. Furthermore, Barnes contends that the defendants “intentionally and
collectively orchestrated a bias system where the Plaintiff was met with retaliation, intentional
interference, and callous indifference in the right to exercise free speech.”

Barnes requests that the Court appoint counsel to assist him because of “the complexities of the
current matter and the defendants[’] reluctance to cooperate [in discovery].” Furthermore, Barnes
contends that he is “currently on lock down, and as the court knows this facility [U.S. Penitentiary,
Pollock, Louisiana], is constantly on lock down. This condition impairs my ability to adequately research
and prepare for this matter.” In addition, Barnes maintains that he has “attempted to reach out to several
attorneys yet [his] inability to pay seemed to be the reason why [he] could not obtain counsel.”
Procedural Background
On November 30, 2011, the defendants filed a motion to dismiss Barnes’ amended complaint.
See Docket Entry No. 52. In a Memorandum Opinion and Order issued on August 3, 2012, the
Honorable John G. Koeltl denied the defendants’ motion to dismiss respecting all claims except Barnes’
claims that he suffered constitutional violations as a consequence of Westchester County’s corrections
policies or customs.
Legal Standard
Pleadings drafted by a pro se litigant, such as Barnes, are to be construed liberally and interpreted
to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
In reviewing Barnes’ application, the Court has applied this standard.
Civil Litigants have no constitutional right to counsel. See United States v. Coven, 662 F.2d 162,
176 (2d Cir. 1981). However, 28 U.S.C. § 1915(e)(1) authorizes a district court to “request an attorney to
represent any person unable to afford counsel.” “In deciding whether to appoint counsel, [a] district
[court] should first determine whether the indigent’s position seems likely to be of substance.” Hodge v.
Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). An indigent’s claim(s) is likely to be of substance if it
has merit and “appears to have some chance of success.” Id., 802 F.2d at 60-61.
Once a court determines that a plaintiff has satisfied the above-noted threshold requirement, it
should consider “secondary criteria” in deciding whether to appoint counsel. Cooper v. A. Sargenti, Co.,
Inc., 877 F.2d 170, 172-73 (2d Cir. 1989). These criteria include: (1) the indigent’s ability to obtain
counsel independently; (2) the indigent’s ability to investigate the crucial facts; (3) whether conflicting
evidence implicating the need for cross-examination will be the major proof presented to the fact finder;
(4) the indigent’s ability to present the case; (5) the complexity of the legal issues; and (6) any special
reason why appointment of counsel, in the particular case, would be more likely to lead to a just
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determination. See Hodge, 802 F.2d at 61-62.

Application ofLegal Standard
"[A]n attorney need not be appointed in every case which survives a motion to dismiss." Cooper,
877 F.2d at 172. However, the factual allegations Barnes has made against the county, which remain
after Judge Koeltl's decision on the defendants' motion to dismiss, do not suggest that his chances of
success are "extremely slim." Hodge, 802 F.2d at 60. Accordingly, Barnes has satisfied the "threshold
showing of some likelihood of merit." Cooper, 877 F.2d at 174. With respect to Barnes' ability to obtain
counsel independently, he has stated, through a declaration, that he attempted to retain counsel,
unsuccessfully, due, he believes, to his inability to pay for legal services. Barnes is in a federal
penitentiary, which experiences "lock downs" frequently, that limit his ability to conduct research in
order to prepare for trial. Moreover, Barnes' retaliation claims are fact intensive. They will require a
significant amount of investigation, and research, which, without assistance from counsel, Barnes will not
likely be able to perform and be in a position to prove his case. In addition, Barnes' claims are
predicated, in part, on the policies or customs of the county's corrections department and their
infringement on several of his constitutional rights. Consequently, his claims appear to be complex,
legally and factually. Furthermore, as Barnes is incarcerated, his ability to depose witnesses and to
exploit fully the other discovery tools available, under the Federal Rules of Civil Procedure, is limited. In
light of the potentially complex legal and factual issues in this case, and Barnes' limited ability to
research, investigate and prosecute his claims effectively, the Court finds that appointing counsel to assist
him is more likely to lead to ajust determination.

Conclusion
For the foregoing reasons, Barnes' motion for the Court to appoint counsel to assist him, Docket
Entry No. 79, is granted. The Clerk of Court is directed to appoint counsel from the illQ bono panel to
represent Barnes.
Dated: New York, New York
May 1,2013

SO ORDERED:
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KEVIN NATHANIEL Fb~
UNITED STATES MAGISTRATE JUDGE

Khalid Barnes
Pro Se Clerk

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