Babyrev v. Lanotte et al

Filing 118

ORDER: At this stage in the proceedings, and without any substantive activity by Babyrev in over a year, the Court is unable to conclude that Plaintiff's claims are likely to have merit. Babyrev's application for the appointment of pro bono counsel is therefore DENIED without prejudice. To the extent this case remains open, Plaintiff may, however, seek advice from the New York Legal Assistance Group by calling 212-659-6190. In addition, the Court directs Babyrev to show cause why this case should not be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b) by letter by Friday, November 20, 2020. Failure to comply with Court orders may result in sanctions,including dismissal for failure to prosecute under Rule 41(b). It is SO ORDERED. (Signed by Judge Edgardo Ramos on 10/30/2020) (ama)

Case 1:16-cv-05421-ER Document 118 Filed 10/30/20 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
VADIM BABYREV,
Plaintiff,
v.

ORDER

DR. A. LANOTTE, Psychiatrist at Kirby Forensic
Psychiatric Center; SHTA SANZ; SENIOR SHTA
OYAKHILOME; DR. MORTIERE, Psychologist at Kirby
Forensic Psychiatric Center; SOCIAL WORKER JI LING, at
Kirby Forensic Psychiatric Center; and ANN MARIE T.
SULLIVAN, Commissioner of Mental Health of the State of
New York; each individually and in their official capacities,

16 Civ. 5421 (ER)

Defendants.

RAMOS, D.J.
On July 7, 2016, Vadim Babyrev, a patient at Kirby Forensic Psychiatric Center, brought
this action, pro se, pursuant to 42 U.S.C. § 1983 against Dr. A. Lanotte and other officials
employed by the Kirby Psychiatric Center and New York State (collectively, “Defendants”).
Doc. 1. Defendants answered Babyrev’s third amended complaint on April 20, 2018. Docs. 9194. On October 3, 2019, the Court denied Babyrev’s request for counsel with leave to renew.
Doc. 108. On October 8, 2020, the Court directed the parties to submit a status report because
there had been no activity to advance this matter for over a year. 1 On October 29, Defendants
submitted a status report stating that Babyrev had told Defendants’ counsel that he is
“medicat[ed] to the point where [he] cannot do legal work” and asked for “legal representation or
1

Neither of Babyrev’s other requests advanced his claims. On October 31, 2019, the Court denied Babyrev’s
request that it intercede on behalf of another patient at Kirby. Doc. 111. On April 23, 2020, a relative of Babyrev’s
requested, on Babyrev’s behalf, that claims related to the COVID-19 pandemic be added to his habeas petition.
Doc. 112. On April 29, Defendants informed the Court that the same request had been filed in his case pending
before Hon. Laura Taylor Swain and that his counsel in that matter had already been directed to review those claims
for inclusion in that case. Doc. 113.

Case 1:16-cv-05421-ER Document 118 Filed 10/30/20 Page 2 of 3

stand by Counsel.” Doc. 117.
Babyrev’s renewed request for counsel is denied. Courts do not have the power to
obligate attorneys to represent pro se litigants in civil cases. Mallard v. U.S. Dist. Ct. for the S.
Dist. of Iowa, 490 U.S. 296, 310 (1989). Instead, pursuant to 28 U.S.C. § 1915(e)(1), the Court
may, in its discretion, order that the Pro Se Office request that an attorney represent an indigent
litigant by placing the matter on a list that is circulated to attorneys who are members of the
Court’s Pro Bono Panel. Palacio v. City of New York, 489 F. Supp. 2d 335, 344 (S.D.N.Y. 2007).
The standards governing the appointment of counsel in pro se cases were set forth by the Second
Circuit in Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997), Cooper v. A. Sargenti Co.,
877 F.2d 170, 172 (2d Cir. 1989), and Hodge v. Police Officers, 802 F.2d 58, 60–61 (2d Cir.
1986). Factors to be considered in ruling on an indigent litigant’s request for counsel include the
merits of the case and Plaintiff’s ability to gather the facts and present the case without counsel.
See Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015) (citing factors set forth in Hodge, 802
F.2d at 60–62). Of these, the Court must “first determine whether the indigent’s position seems
likely to be of substance,” Hodge, 802 F.2d at 61, and, if this threshold requirement is met, then
the Court must consider additional factors, including the pro se litigant’s “ability to handle the
case without assistance,” Cooper, 877 F.2d at 172; accord Hendricks, 114 F.3d at 392.
At this stage in the proceedings, and without any substantive activity by Babyrev in over
a year, the Court is unable to conclude that Plaintiff’s claims are likely to have merit. Babyrev’s
application for the appointment of pro bono counsel is therefore DENIED without prejudice. To
the extent this case remains open, Plaintiff may, however, seek advice from the New York Legal
Assistance Group by calling 212-659-6190.

2

Case 1:16-cv-05421-ER Document 118 Filed 10/30/20 Page 3 of 3

In addition, the Court directs Babyrev to show cause why this case should not be
dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b) by letter by
Friday, November 20, 2020. Failure to comply with Court orders may result in sanctions,
including dismissal for failure to prosecute under Rule 41(b).
It is SO ORDERED.
Dated: October 30, 2020
New York, New York
_______________________
Edgardo Ramos, U.S.D.J.

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