Dawkins v. Copeland et al

Filing 125

ORDERS DIRECTING SERVICE & APPOINTMENT OF PRO BONO COUNSEL: The Clerk of Court is directed to notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that Deputy Warden Gra ce of the Northern Infirmary Command waive service of summons. Furthermore Court directs that the Clerk of Court seek pro bono counsel to enter a limited appearance for the purpose of conducting discovery in the above-captioned action. Counse l's appearance will not include responding to dispositive motions, including any potential motion to dismiss by Grace. Copeland is directed to respond to the Second Amended Complaint by August 5, 2020. Grace is directed to answer or otherwise respond to the Second Amended Complaint within 21 days after he or she waives service. The Law Department is directed to inform the Court by August 5, 2020 of whether Grace has been informed of this Order, if he or she has not wa ived service by then. Finally, given that it will likely be some time before pro bono counsel can be secured, discovery is stayed in this case until such time pro bono counsel makes an appearance on Dawkins' behalf. The Court's sche duling order of May 28, 2020, Doc. 114, is VACATED. The Clerk of Court is directed to terminate the motions, Docs. 116 and 117. Waiver of Service due by 8/21/2020. (Signed by Judge Edgardo Ramos on 7/21/2020) (mro) Transmission to Office of Pro Se Litigation for processing. Transmission to Pro Se Assistants for processing.

Case 1:17-cv-09926-ER Document 125 Filed 07/22/20 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EDWARD C. DAWKINS,
Plaintiff,
– against –
COPELAND, Correctional Officer; M.
HOLINESS, Grievance Coordinator; RICE,
Civilian, SCULLY, Cashier Officer; S.
CANADY, Grievance Coordinator; Executive
Director of Programs DEPUTY WARDEN VAS
#242; DR. RAMOS and DR. KATZ, Medical
Directors; DR. JOHN DOE; CAROLYN
SAUNDERS, Warden of North Infirmary
Command; K.TILLERY, Captain; LOUNETTE
DAWKINS, Captain; CAPTAIN COLON;
CAPTAIN COOPER; and DEPUTY WARDEN
GRACE, Executive Supervisor Operations,

ORDERS
DIRECTING SERVICE &
APPOINTMENT OF
PRO BONO COUNSEL
17 Civ. 9926 (ER)

Defendants.
RAMOS, D.J.:
On March 31, 2020, this Court issued an Opinion and Order granting motions to
dismiss by defendants Canaday and Capt. Dawkins with prejudice, granting in part and
denying in part a motion to dismiss by defendant Copeland, dismissing sua sponte and
with prejudice claims against defendants Holiness, Scully, Katz, Saunders, Rice, Vaz,
Tillery, and Ramos, and sua sponte but without prejudice dismissing claims against
defendants Grace, Cooper, and Colon. 2020 WL 1529161, Doc. 110. be Court directed
Dawkins to file a Second Amended Complaint realleging claims against Grace, Cooper,
and Colon, and it directed Copeland to answer any Second Amended Complaint once
filed.
Dawkins’ Second Amended Complaint, Doc. 116, and request for pro bono
counsel, Doc. 117, were docketed on June 24, 2020. Now, in this Order, the Court: (1)
sua sponte dismisses with prejudice the Second Amended Complaint as against Cooper

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and Colon and orders service of the Second Amended Complaint on Grace and (2) orders
the appointment of pro bono counsel for the limited purposes of discovery.
I.

DEFENDANTS GRACE, COOPER, AND COLON
be Prison Litigation Reform Act requires that federal courts screen complaints

brought by prisoners who seek relief against a governmental entity or an officer or
employee of a governmental entity. See 28 U.S.C. § 1915A(a). be Court must dismiss a
prisoner’s in forma pauperis complaint, or any portion of the complaint, that is frivolous
or malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B),
1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). be Court must also
dismiss a complaint if the Court lacks subject-matter jurisdiction. See Fed. R. Civ. P.
12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged
to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and
interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and
citations omitted, emphasis in original).
To establish a Section 1983 claim for allegedly unconstitutional conditions of
confinement, a plaintiff must make two showings. Darnell v. Pineiro, 849 F.3d 17, 29 (2d
Cir. 2017). First, the plaintiff must “show[] that the challenged conditions were
sufficiently serious to constitute objective deprivations of the right to due process.” Id.;
see also id. at 30 (“Under both the Eighth and Fourteenth Amendments, to establish an
objective deprivation, the inmate must show that the conditions, either alone or in
combination, pose an unreasonable risk of serious damage to his health . . . .” (internal
quotation marks omitted)). Second, the plaintiff must “show[] that the officer[s] acted
with at least deliberate indifference to the challenged conditions.” Id. be Fourteenth
Amendment applies an objective mens rea standard: be official need only “recklessly
fail[] to act with reasonable care to mitigate the risk that the condition posed to the
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pretrial detainee even though the defendant-official knew, or should have known, that the
condition posed an excessive risk to health or safety.” Id. at 35 (citing Kingsley v.
Hendrickson, 135 S. Ct. 2466 (2015)).
In its March 2020 Opinion and Order, the Court dismissed claims against Cooper
and Colon by observing the following:
[T]he claims against Colon, Cooper, and Grace are dismissed because they fail to state a claim. Dawkins fails to allege that Colon
or Grace knew or should have known of his medical conditions
when they searched his cell and Grace directed Colon to remove the
mattress. Cooper, though Dawkins told him he needed the mattress,
checked with Katz, a doctor, before taking it away. bis consultation
with a medical professional cannot form the basis for a claim of deliberate indifference to Dawkins’ medical needs. See Ward v. Capra,
No. 16 Civ. 6533 (KMK), 2018 WL 1578398, at *6 (S.D.N.Y. Mar.
29, 2018) (“Even if [defendant] had knowledge of the grievance, a
prison administrator is permitted to rely upon and be guided by the
opinions of medical personnel concerning the proper course of treatment administered to prisoners, and cannot be held to have been personally involved if he does so.”).
2020 WL 1529161 at *10-11.
In his Second Amended Complaint, Dawkins fails to add allegations suggesting
that that either Cooper or Colon exhibited any deliberate indifference to Dawkins’
medical needs. In fact, a review of both complaints reveals no new allegations about
these individuals at all. Compare Aff. ¶¶ 46, 47, Doc. 1011 with Second Am. Compl. ¶¶
35, 36, Doc. 116. Accordingly, Dawkins’ Second Amended Complaint fails to state a
claim in reference to Colon and Cooper and his complaint is dismissed as against them.
Dawkins does, however, make new allegations against Grace. He alleges that
Grace, as executive supervisor of operations and deputy warden of the Northern
Infirmary Command at Rikers Island, knew or should have known of the medical

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Dawkins’ allegations were made in his Amended Complaint, Doc. 79, and an affidavit attached to his
memorandum in opposition to the defendants’ motion to dismiss, Doc. 101. Because Dawkins is
proceeding pro se, the Court considered the factual allegations made in the affidavit alongside the Amended
Complaint. See Long v. Lafko, 254 F. Supp. 2d 444, 446 (S.D.N.Y. 2003).

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conditions affecting those specifically designated to this medical facility. Second Am.
Compl. ¶ 38. He further alleges that his medical history, including a broken face, a
punctured lung, and narcolepsy, was transmitted to Northern Infirmary Command and
that Grace knew or should have known of it. Id. ¶ 39. Finally, he newly alleges that
Grace was specifically informed of Dawkins’ diagnosis of lower back and neck injuries
necessitating a medical mattress both before and after he or she ordered Dawkins’
medical mattress removed from his cell. Id. ¶¶ 8–10.
Together with the special solicitude courts must grant pro se litigants at the
pleading stage, see Harris, 572 F.3d at 72, these new allegations suggest that Grace knew
or should have known of Dawkins’ severe medical conditions when he or she ordered the
search of his cell and removal of his mattress. In any event, his allegations in this regard
are not frivolous or malicious, and the Court will accordingly order service on Grace.
Grace will have the opportunity to answer, move to dismiss under Federal Rule of Civil
Procedure 12(b)(6), or otherwise respond to the Second Amended Complaint after he or
she is served or waives service.
II.

APPOINTMENT OF PRO BONO COUNSEL
be Court directs that the Clerk of Court seek pro bono counsel to enter a limited

appearance for the purpose of conducting discovery in the above-captioned action.
Counsel will file a Notice of Limited Appearance as Pro Bono Counsel. Copeland takes
no position on Dawkins’ application for pro bono counsel. Doc. 119 at 1.
A. LEGAL STANDARD
be in forma pauperis statute provides that the courts “may request an attorney to
represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Unlike in
criminal cases, in civil cases, there is no requirement that courts supply indigent litigants
with counsel. Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986). Instead, the
courts have “broad discretion” when deciding whether to seek pro bono representation
for a civil litigant. Id. Even if a court does believe that a litigant should have a free

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lawyer, under the in forma pauperis statute, a court has no authority to “appoint” counsel,
but instead, may only “request” that an attorney volunteer to represent a litigant.
Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 301–310 (1989).
Moreover, courts do not have funds to pay counsel in civil matters. Courts must therefore
request the services of pro bono counsel sparingly, and with reference to public benefit, in
order to preserve the “precious commodity” of volunteer-lawyer time for those litigants
whose causes are truly deserving. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73
(2d Cir. 1989).
In Hodge, the Second Circuit Court of Appeals set forth the factors a court should
consider in deciding whether to grant a litigant’s request for pro bono counsel. 802 F.2d
at 61–62. Of course, the litigant must first demonstrate that he or she is indigent, for
example, by successfully applying for leave to proceed in forma pauperis. be court must
then consider whether the litigant’s claim “seems likely to be of substance” — “a
requirement that must be taken seriously.” Id. at 60–61. If these threshold requirements
are met, the court must next consider such factors as:
the indigent’s ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be
the major proof presented to the fact finder, the indigent’s ability to
present the case, the complexity of the legal issues[,] and any special
reason in that case why appointment of counsel would be more
likely to lead to a just determination.
Id. In considering these factors, district courts should neither apply bright-line rules nor
automatically deny the request for counsel until the application has survived a dispositive
motion. See Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Rather, each
application must be decided on its own facts. See Hodge, 802 F.2d at 61.
B. DISCUSSION
Dawkins meets the threshold requirements of Hodge. As Dawkins filed a Request
to Proceed in Forma Pauperis (IFP), which the Court granted on February 6, 2018, Doc.
6, Dawkins qualifies as indigent. And as Dawkins’ claim against Copeland survived a

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motion to dismiss, it is “likely to be of substance.” Hodge, 802 F.2d 61-62. be Court
finds that the other Hodge factors also weigh in favor of granting Dawkins’ application.
In particular, Dawkins’ status as an incarcerated person makes his ability to investigate
the circumstances surrounding disruptions to his legal mail and — should his claims
against Grace survive a motion to dismiss, the circumstances surrounding the removal of
his medical mattress — nearly impossible. Indeed, Dawkins has regularly updated the
Court with his difficulties in accessing his institution’s law library and in sending and
receiving legal mail. See, e.g., Docs. 77, 89, 90, 99, 107, 108. bese difficulties would
be compounded in discovery and unnecessarily complicate the process. In this case,
requesting pro bono counsel would “lead to a quicker and more just result by sharpening
the issues and shaping examination.” Hodge, 802 F.2d at 61.
Given the early stage of the proceedings, the Court will request that counsel
appear for the limited purpose of conducting discovery. In addition, pro bono counsel
may engage in settlement discussions. Pro bono counsel will not be obligated for any
aspect of Dawkins’ representation beyond the matters described in this order. In
particular, pro bono counsel will not be required to respond to a dispositive motion,
including any motion to dismiss filed by Grace. In the event that the defendants file a
dispositive motion, pro bono counsel may seek appropriate relief, including an extension
of Dawkins’ time to respond, or an expansion of pro bono counsel’s role to include
responding to the motion. Absent an expansion of the scope of pro bono counsel’s
representation, pro bono counsel’s representation of Dawkins will end upon completion
of discovery. Upon the filing by pro bono counsel of a Notice of Completion, the
representation by pro bono counsel of Dawkins in this matter will terminate, and pro
bono counsel will have no further obligations or responsibilities to Dawkins or to the
Court in this matter.
Under the Court’s Standing Order regarding the Creation and Administration of
the Pro Bono Fund (16-MC-0078), pro bono counsel may apply to the Court for
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reimbursement of certain out-of-pocket expenses spent in furtherance of Dawkins’ case.
be Pro Bono Fund is especially intended for attorneys for whom pro bono service is a
financial hardship. See http://www.nysd.circ2.dcn/docs/prose/pro_bono_fund_order.pdf.
III.

CONCLUSION
be Clerk of Court is directed to notify the New York City Department of

Correction and the New York City Law Department of this order. be Court requests that
Deputy Warden Grace of the Northern Infirmary Command waive service of summons.
Furthermore Court directs that the Clerk of Court seek pro bono counsel to enter a limited
appearance for the purpose of conducting discovery in the above-captioned action.
Counsel’s appearance will not include responding to dispositive motions, including any
potential motion to dismiss by Grace.
Copeland is directed to respond to the Second Amended Complaint by August 5,
2020. Grace is directed to answer or otherwise respond to the Second Amended
Complaint within 21 days after he or she waives service. be Law Department is directed
to inform the Court by August 5, 2020 of whether Grace has been informed of this Order,
if he or she has not waived service by then. Finally, given that it will likely be some time
before pro bono counsel can be secured, discovery is stayed in this case until such time
pro bono counsel makes an appearance on Dawkins’ behalf. be Court’s scheduling
order of May 28, 2020, Doc. 114, is VACATED.
be Clerk of Court is directed to terminate the motions, Docs. 116 and 117.
It is SO ORDERED.
Dated:

July 21, 2020
New York, New York
EDGARDO RAMOS, U.S.D.J.

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