Gayot v. Perez et al
Filing
61
OPINION & ORDER re: 56 MOTION to Dismiss . filed by The State of New York. For the reasons stated above, Defendant's Motion To Dismiss is granted, and Plaintiff's request for court appointed counsel is denied without prej udice. Although this is the third adjudication of Plaintiff's claims, Plaintiff's claims are dismissed without prejudice. If Plaintiff wishes to file an amended complaint alleging additional facts and otherwise addressing the deficiencie s identified above, Plaintiff must do so within 30 days of the date of this Order. Specifically, Plaintiff may wish to sue the individuals he claims are responsible for the wrongs he allegedly suffered in their individual capacities. See, e.g., Yin g Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993) ("As to a [§ 1983] claim brought against him in his individual capacity, however, the state official has no Eleventh Amendment immunity."). The amended complaint will replace, not supplement, the prior complaints. The failure to timely file an amended complaint may result in the dismissal of this Action with prejudice. The Court also warns Plaintiff that if he chooses to file an amended complaint that Defendan ts successfully move to dismiss, such dismissal may be with prejudice. The Clerk is respectfully directed to terminate the pending Motion, (see Dkt. No. 56), and mail a copy of this Order to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/22/23) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANDREW GAYOT,
Plaintiff,
No. 16-CV-8871 (KMK)
v.
OPINION & ORDER
THE STATE OF NEW YORK,
Defendant.
Appearances:
Andrew Gayot
Fishkill Correctional Facility
Beacon, NY
Pro Se Plaintiff
Ian Ramage, Esq.
Assistant Attorney General
New York, NY
Counsel for Defendant
KENNETH M. KARAS, United States District Judge:
Plaintiff, Andrew Gayot (“Plaintiff”), proceeding pro se, brings this Action pursuant to
42 U.S.C. § 1983 against the State of New York. (See generally Third Am. Compl. (“TAC”)
(Dkt. No. 51).)
Before the Court is Defendant’s Motion To Dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1), 12(b)(6), and 42 U.S.C. § 1997e(a). (See Not. of Mot. (Dkt. No. 56).)
Plaintiff has also submitted a request for appointment of pro bono counsel. (See Letter from
Andrew Gayot to Court (“Pl’s Application”) (May 10, 2023) (Dkt. No. 60).) For the following
reasons, Defendant’s Motion is granted and Plaintiff’s request is denied.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Third Amended Complaint and are
assumed true for the purposes of resolving the instant Motion. See Div. 1181 Amalgamated
Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep’t of Educ., 9 F.4th 91, 94 (2d Cir.
2021) (per curiam).
Plaintiff was incarcerated at Downstate Correctional Facility (“DCF”) from August to
December 2016. (TAC at 5.) Plaintiff alleges that DCF Sergeant Candidus, who is not a party to
this Action, “questioned his relationship with his attorney.” (Id.) 1 Plaintiff also alleges that
unidentified DCF officers interfered with his mail, which resulted in Plaintiff being unable to
“properly answer legal notices in a pending mortgage foreclosure action.” (Id.)
B. Procedural History
The Court has discussed the procedural background of this Action in a previous Opinion.
(See Op. & Order (“2018 Op.”) (Dkt. No. 37).) The Court discusses only those subsequent
proceedings relevant to deciding the instant Motion.
Plaintiff filed his Third Amended Complaint on January 18, 2023. (See TAC.)
Defendant filed its Motion To Dismiss on February 28, 2023. (See Not. of Mot.; Def’s. Mem. of
Law in Supp. of Mot. To Dismiss (“Def’s Mem”) (Dkt. No. 57).) On April 18, 2023, Defendant
requested that its Motion be deemed fully submitted because Plaintiff’s time to respond had
passed; the Court granted the request the same day. (See Letter from Ian Ramage, Esq., to Court
(Apr. 18, 2023) (Dkt. No. 58); Order (Dkt. No. 59).) On May 10, 2023, Plaintiff requested the
Court provide him pro bono counsel. (Pl’s Application.)
1
Unless otherwise noted, the Court cites to the ECF-stamped page number at the top
right of each page.
2
II. Discussion
A. Standard of Review
The Supreme Court has consistently ruled that a “plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels[,] and a formulaic recitation of the
elements of a cause of action will not do” when considering whether to grant or deny a Motion
To Dismiss under Federal Rule of Civil Procedure 12(b)(6). See Bell Atl. Corp. v Twombly, 550
US 544, 548 (2007). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked assertions devoid of
further factual enhancement.” Id. (alteration and quotation marks omitted). Instead, a
complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the allegations in the complaint,” id. at
563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its
face,” id. at 570, if a plaintiff has not “nudged [his or her] claims across the line from
conceivable to plausible, the[]complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679
(“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense. But where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R. Civ. P.
8(a)(2))); Id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.”).
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In considering Defendant’s Motion To Dismiss, the Court is required to ”accept as true
all of the factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the
Court must “draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot.
Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC,
699 F.3d 141, 145 (2d Cir. 2012)). Where, as here, a plaintiff proceeds pro se, the Court must
“construe[] [his complaint] liberally and interpret[] [it] to raise the strongest arguments that [it]
suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation
marks omitted). However, “the liberal treatment afforded to pro se litigants does not exempt a
pro se party from compliance with relevant rules of procedure and substantive law.” Bell v.
Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (quotation marks omitted).
Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its
consideration to facts stated on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and to matters of which judicial notice
may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation
marks omitted). However, when the Plaintiff is pro se, the Court may consider “materials
outside the complaint to the extent that they are consistent with the allegations in the complaint,”
Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013)
(quotation marks omitted), including, “documents that a pro se litigant attaches to his opposition
papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010)
(italics omitted), statements by the plaintiff “submitted in response to [a] defendant's request for
a pre-motion conference,” Jones v Fed. Bureau of Prisons, 11-CV-4733, 2013 WL 5300721, at
*2 (E.D.N.Y. Sept. 19, 2013), and “documents that the plaintiff[] either possessed or knew about
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and upon which [he or she] relied in bringing the suit,” Rothman v. Gregor, 220 F.3d 81, 88 (2d
Cir. 2000); see also, Mercedes v Westchester County, No. 18-CV-4087, 2019 WL 1429566, at *4
(S.D.N.Y. Mar. 29, 2019).
B. Analysis
Defendant argues that Plaintiff’s suit is barred by the doctrine of sovereign immunity.
(Def’s Mem 7–8.) The Eleventh Amendment bars suits by individuals against a state in federal
court without that state’s consent. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261,
267–68 (1997). New York has not consented to being sued in federal court. See Trotman v.
Palisades Interstate Park Comm’n, 557 F.2d 35, 38–40 (2d Cir. 1977) (noting that New York
state has consented only to being sued in the New York Court of Claims); Bryant v. N.Y. State
Dep’t of Corr. Servs. Albany, 146 F. Supp. 2d 422, 425 (S.D.N.Y. 2001) (noting that it is
“beyond dispute” that New York and its agencies have not consented to being sued in federal
court (internal quotation marks omitted)). Accordingly, Plaintiff’s suit is barred by sovereign
immunity and must be dismissed.2
2
Defendant also argues that Plaintiff’s claim must be dismissed because he failed to
exhaust his administrative remedies prior to bringing suit. (Def’s Mem 8–9.) The Court
disagrees because, although the Court previously dismissed Plaintiff’s Action for failure to
exhaust without prejudice, (see generally 2018 Op.), Plaintiff has since indicated that he has
properly exhausted his claims, (see Letter from Andrew Gayot to Court (December 28, 2020)
(Dkt. No. 39)). Thus, as the Second Circuit has long held and as this Court specifically noted in
its previous opinion, Plaintiff may now re-institute his suit. See Neal v. Goord, 267 F.3d 116,
123 (2d Cir. 2001), overruled in part on other grounds by Porter v. Nussle, 534 U.S. 516 (2002)
(explaining that “failure to exhaust administrative remedies is usually a ‘curable, procedural
flaw’ that can be fixed by exhausting those remedies and then reinstituting the suit” (quoting
Snider v. Melindez, 199 F.3d 108, 111–12 (2d Cir.1999))). (See also 2018 Op. at 16.)
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C. Request for Pro Bono Counsel
Plaintiff has also requested the Court appoint him pro bono counsel. (See Pl’s
Application.)3
Although there is not a constitutional right to counsel in civil cases, the Court has the
authority to appoint counsel for indigent parties. See 28 U.S.C. § 1915(e)(1). “Broad discretion
lies with the district judge in deciding whether to appoint counsel pursuant to this provision.”
Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986). When analyzing whether appointment
of counsel is appropriate, the Court undertakes a two-step inquiry. See Ferrelli v. River Manor
Health Care Ctr., 323 F.3d 196, 203 (2d Cir. 2003).
First, the Court “‘determine[s] whether the indigent’s position seems likely to be of
substance.’” Id. (quoting Hodge, 802 F.2d at 61); see also Johnston v. Maha, 606 F.3d 39, 41
(2d Cir. 2010) (“This Court considers motions for appointment of counsel by asking first
whether the claimant has met a threshold showing of some likelihood of merit.” (quotation marks
omitted)). In other words, the applicant’s position must not be so “highly dubious” that he or she
appears to have no chance of success. Hodge, 802 F.2d at 60. In making this determination, the
Court construes pro se litigants’ submissions liberally, and interprets them to raise the strongest
arguments that they suggest. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d
Cir. 2006).
If the threshold requirement is met, the Court proceeds to consider other prudential
factors such as the litigant’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
3
As a threshold matter, the Court notes that Plaintiff has been authorized to proceed in
forma pauperis, so he qualifies as an indigent. (See Order (Dkt. No. 6).)
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special reason . . . why appointment of counsel would be more likely to lead to a
just determination.
Ferrelli, 323 F.3d at 203–04 (quoting Hodge, 802 F.2d at 61–62); see also Garcia v. USICE
(Dep’t of Homeland Sec.), 669 F.3d 91, 98-99 (2d Cir. 2011) (listing Hodge factors).
Here, Plaintiff alleges that various guards at DCF interfered with his mail and his access
to the courts. (TAC 5.)
For the purpose of addressing Plaintiff’s request, the Court construes Plaintiff’s
Complaint liberally and assumes it has “some likelihood of merit” such that it satisfies the
threshold requirement under Hodge. Johnston, 606 F.3d at 41 (quotation marks omitted); see
also McCray v. Lee, No. 16-CV-1730, 2020 WL 4229907, at *2 (S.D.N.Y. July 23,
2020) (assuming for the purpose of the application for pro bono counsel that the plaintiff's claims
had “some likelihood of merit”); Ahmad v. White Plains City Sch. Dist., No. 18-CV-3416, 2020
WL 3972274, at *3 (S.D.N.Y. July 14, 2020) (same); Simmons v. Diaz, No. 17-CV-8886, 2018
WL 11258138, at *4 (S.D.N.Y. May 8, 2018) (same).
However, turning to the second inquiry under Hodge, various prudential considerations
militate against the appointment of counsel here. Plaintiff's claims “are not so complex or
unique that a person of Plaintiff’s intelligence would be unable to handle them at this stage.”
Mena v. City of New York, No. 12-CV-28, 2013 WL 1165554, at *2 (S.D.N.Y. Mar. 19, 2013).
Indeed, Plaintiff's “complaint articulates a clear and concise statement of the facts, demonstrating
his ability to present his case.” Samet v. Dodrill, No. 05-CV-8795, 2006 WL 278176, at *2
(S.D.N.Y. Feb. 3, 2006). Plaintiff’s claim is largely based on the retelling of events that
happened in his presence and “do[es] not appear to require outside investigation.” Person v.
Ercole, No. 08-CV-7532, 2009 WL 855758, at *2 (S.D.N.Y. Mar. 26, 2009); cf. Hendricks v.
Coughlin, 114 F.3d 390, 394 (2d Cir. 1997) (granting a plaintiff’s motion for appointment of
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counsel in part due to plaintiff’s incarceration, which “severely limit[ed] his ability to investigate
and present the crucial facts in what appear[ed] to be a fact-intensive case”). Additionally,
Plaintiff has demonstrated his ability to present the case himself through his submissions in the
instant Action that adequately express his arguments and desired forms of relief. See Harrison v.
N.Y.C. Admin. for Children’s Servs., No. 02-CV-947, 2002 WL 2022871, at *1 (S.D.N.Y. Sept.
3, 2002) (noting that the plaintiff was “capable of presenting her own case” where, “[i]n
submissions to the court, she . . . demonstrated an ability to make arguments and draft
pleadings”). Further, even though Plaintiff alleges that he does not have regular “access to the
law library,” (Pl.’s Application 1), this factor alone “does not alter the Court’s analysis as to the
remaining Hodge factors.” See Arnold v. County of Westchester, No. 16-CV-9552 at Dkt. No. 38
(S.D.N.Y. Apr. 4, 2017); cf. Perkins v. Napoli, No. 08-CV-6248, 2010 WL 1056347, at *2
(W.D.N.Y. Mar. 19, 2010) (denying a plaintiff’s motion for appointment of counsel where the
plaintiff alleged he had no access to the law library, because “inmates in administrative
segregation [had] access to legal materials and documents”).
Additionally, Plaintiff does not explain whether he has sought to obtain counsel in this
matter at all before asking the Court to appoint counsel. Because Plaintiff has not demonstrated
that he made any effort to engage counsel, his request must be denied. See Walsh v. Buchanan,
No. 11-CV-1206, 2013 WL 145041, at *3 (D. Conn. Jan. 11, 2013) (“The possibility that the
plaintiff may be able to secure legal assistance or representation independently precludes
appointment of counsel by the court at this time.”); Anderson v. Romano, No. 08-CV-559, 2009
WL 702818, at *1 (S.D.N.Y. Mar. 13, 2009) (denying the plaintiff's request for appointment of
counsel because the plaintiff “ha[d] not indicated to the [c]ourt . . . that he made any effort to
engage counsel prior to making the . . . application”).
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Although the Court holds submissions from pro se parties “to less stringent standards
than formal pleadings drafted by lawyers” and provides such solicitude as “a function of their
necessary inexpertness in the law,” Hayes v. Dep’t of Educ., 20 F. Supp. 3d 438, 446 (S.D.N.Y.
2014) (internal quotation marks omitted), Plaintiff has not provided the Court with sufficient
grounds to determine that appointment of counsel would be more likely to lead to a just
determination in this case.
For the reasons stated above as well as the consideration that “[v]olunteer lawyer time is
a precious commodity,” Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989), Plaintiff's
request for assignment of counsel is denied without prejudice. Plaintiff may renew his request
and provide the Court with additional information regarding any change of circumstances that
would support a renewed application, including when and if this case goes to trial. See Falls v.
Pitt, No. 16-CV-8863, 2022 WL 2162983, at *2 (S.D.N.Y. May 6, 2022) (“[T]he Court can
again consider appointing counsel if and when this case [ ] proceed[s] to trial.” (alterations in
original)).
III. Conclusion
For the reasons stated above, Defendant’s Motion To Dismiss is granted, and Plaintiff’s
request for court appointed counsel is denied without prejudice. Although this is the third
adjudication of Plaintiff’s claims, Plaintiff’s claims are dismissed without prejudice. If Plaintiff
wishes to file an amended complaint alleging additional facts and otherwise addressing the
deficiencies identified above, Plaintiff must do so within 30 days of the date of this Order.
Specifically, Plaintiff may wish to sue the individuals he claims are responsible for the wrongs
he allegedly suffered in their individual capacities. See, e.g., Ying Jing Gan v. City of New York,
996 F.2d 522, 529 (2d Cir. 1993) (“As to a [§ 1983] claim brought against him in his individual
capacity, however, the state official has no Eleventh Amendment immunity.”). The amended
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