Kotler v. Boley et al

Filing 83

ORDER: Plaintiff's argument is therefore moot, and his requests are denied. Accordingly, Plaintiffs motion is DENIED WITHOUT PREJUDICE. SO ORDERED. (Signed by Magistrate Judge Paul E. Davison on 2/10/2023) Copies Mailed By Chambers. (ks)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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Kerry Kotler,

Plaintiff,

17 Civ. 239 (KMK)(PED)

- against -

C. Boley, Correction Officer, et aL,

ORDER

Defendants.

PAUL E. DAVISON, U.S.M.J.:
This action under 42 U.S.C. § 1983, has been referred to the undersigned for General

Pretrial. [Dkt. 72.] See 28 U.S.C. § 636(b).
Plaintiff, who appears pro se, has moved for the appointment of counsel. [Dkt. 80.]
Because Plaintiff has been granted leave to proceed in forma paziperis (Diet. 5), I accept
Plaintiffs representation that he is unable to afford counsel.
Even indigent plaintiffs have no "right" to counsel in civil cases, however, so applications
for pro bono counsel in such cases are addressed to the court s discretion. Bnrgos v. Hopkins, 14

F.3d 787, 789 (2d Cir. 1994). The Court of Appeals has stressed that such applications should
not be granted indiscriminately, because volunteer lawyers are a "precious commodity." Cooper

v. Sargenti, 877 F.2d 170, 172 (2d Cir. 1989). Accordingly, the district court is directed to
screen such applications first by evaluating the applicant's likelihood of success on the merits.
Id. If the court concludes that the applicant's claims meet this threshold requirement, then the
court is to consider secondary criteria such as "plaintiff's ability to obtain representation

independently, and his ability to handle the case without assistance in light of the required factual
Investigation, the complexity of the legal issues, and the need for expertly-conducted crossexamination to test veracity." Id.

This court will not weigh into Plaintiffs likelihood of success in this case. However, the
court will observe that Plaintiffs claims are "likely to be of substance." Hodge v. Police

Officers, 802 F.2d 58, 60 (2d Cir. 1986). In this case, Defendants motion to dismiss was
previously granted, and the allegations in Plaintiffs second amended complaint were dismissed.
[Dkt. 46.] However, on appeal, the Second Circuit vacated and remanded that decision. See

Kotler v. Boley, 2022 WL 4589678 (2d Cir. Sept. 30, 2022).1 Accordingly, Plaintiffs allegations
are credible enough that they cannot lightly be dismissed. The secondary factors, however,
counsel against appointing Plaintiff counsel. Plaintiff has neither shown, nor alleged, that he has

Copies ofunreported cases cited herein will be mailed to Petitioner as sipro se litigant.

See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

sought and been unable to obtain counsel. He also has not argued that he would be unable to
handle the case due to the required factial investigation, the complexity of the legal issues, and
the need for expertly-conducted cross examination. Such an argument would also be difficult to
believe, as the docket here demonstrates Plaintiffs tenacity in pursuing his claims; he has filed a
complaint, an amended complaint, and successfully appealed a decision granting a motion to
dismiss to the Second Circuit. Accordingly, Plaintiffs request for counsel is denied.
Plaintiff argues that in the alternative, this court should issue an order directing the Office

of Mental Health to provide him with "writing/typing supplies, postage, and photocopy services
without costs," and up-to-date legal resource information. [Dkt. 80 at 2.] Plaintiff asserts that he
is entitled to such an order to ensure his right of access to the courts. Indeed, an incarcerated
individual is entitled to writing supplies and postage in order to seek redress of constitutional
violations in the courts. See Chandler v. Conghlin, 763 F.2d 110, 114 (2d Cir. 1985). However,
this does not mean that an incarcerated individual should "be provided unlimited free postage,
but only that he not be denied a reasonably adequate amount of postage to present his claimed
violations of fundamental constitutional rights to the courts." Id. (internal quotation marks and
internal citation omitted). Further, Plaintiff asserts that he receives $ 35.00 a month, which is
well above what this Circuit has previously determined to be a reasonable amount to prosecute a
case. See Gittens v. Sullivan, 670 F. Supp. 119, 123 (2d Cir. 1987) (finding $1.10 per week, plus
an advance of $36.00 to be "adequate"). With respect to Plaintiffs request for up-to-date legal
sources, defense counsel asserts that Plaintiff has access to off-line legal resources that are
updated four times per year. PlaintifFs argument is therefore moot, and his requests are denied.

Accordingly, Plaintiffs motion is DENIED WITHOUT PREJUDICE.

Dated: February^ 2023
White Plains, New York

SO ORDERED

Paul E. Davison

United States Magistrate Judge