Reynolds v. Federal Bureau of Prisons et al

Filing 19

ORDER denying 18 Application to Appoint Counsel pursuant to 18 U.S.C. 3006(A)(g)(Habeas Corpus Petition); granting 15 Motion for Extension of Time to File ; denying 17 Motion for Reconsideration re 18 APPLICATION to Appoint Counsel pur suant to 18 U.S.C. 3006(A)(g) (Habeas Corpus Petition). filed by Brian Edwards Reynolds, 15 MOTION for Extension of Time to File. filed by Brian Edwards Reynolds, 17 MOTION for Reconsideration. filed by Brian Edwards Reynolds, 12 Order of Service, Add and Terminate Parties, Terminate Motions. The Court DENIES Plaintiffs motion for reconsideration of its Order of Service (ECF No. 17) and his motion for appointment of counsel (ECF No. 18), without prejudice. To the extent that Plaintiff seeks pre-service discovery of Defendants that request is also DENIED. Plaintiffs application for an extension of his deadline to file a Second Amended Complaint is GRANTED. Plaintiff may file a Second Amended Complaint on or before October 22, 2021. A Second Amended Complaint form is attached to this Order. The Clerk of the Court is kindly directed to terminate the Motions at ECF Nos. 15, 17, and 18. The Clerk of the Court is further directed to mail a copy of this Ord er to Plaintiff and show proof of service on the docket. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coopedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Nelson Stephen Roman on 9/7/2021) (tg) Transmission to Docket Assistant Clerk for processing. Modified on 9/8/2021 (tg).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BRIAN EDWARDS REYNOLDS,

9/7/2021

Plaintiff,
No. 21-cv-4763 (NSR)
ORDER

-againstUNITED STATES OF AMERICA, et al.,
Defendant.
NELSON S. ROMÁN, United States District Judge:

The Court is in receipt of several letter motions that Plaintiff submitted on August 30, 2021
seeking, (1) reconsideration of this Court’s Order of Service (ECF No. 12) sua sponte dismissing
claims against several defendants in this action (ECF No. 17); (2) an extension of time to file a
Second Amended Complaint (ECF No. 15); and (3) appointment of pro bono counsel (ECF No.
18). As discussed further below, Plaintiff’s motion for reconsideration is DENIED, Plaintiff’s
motion for appointment of counsel is DENIED, without prejudice to later renewal, and Plaintiff’s
motion for an extension of time to file a Second Amended Complaint is GRANTED. Plaintiff’s
deadline to file a Second Amended Complaint is extended until October 22, 2021.
A.

Plaintiff’s Request for Reconsideration of the August 9, 2021 Order of Service and
Request for Pre-Service Order Compelling Discovery of Unspecified Parties
Plaintiff requests reconsideration of this Court’s August 9, 2021 Order of Service because,

in large part, he disagrees with the Court’s characterization of his claims as arising under either
the FTCA or Bivens. Instead, he believes that he asserted claims arising under 42 U.S.C. § 1983
(“Section 1983”) and “cannot understand why the Court would place an action under designations
(FTCA/Bivens) that would cause dismissal of the action.” (ECF No. 17 at 5.)

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Section 1983 does not apply in this case because the only Defendants named in this action
are federal government officials – i.e., officers, wardens, and health service providers working at
Federal Correctional Institute Otisville. (See Am. Compl. at 3-4.) Section 1983 only confers a
right to sue state governmental employees and others acting under color of state law and does not
typically apply to federal officials like those named as defendants in this action. Bivens is
essentially the federal version of Section 1983 and permits federal courts to hear suits for money
damages against federal government officials accused of constitutional rights. Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). So, while the Court appreciates that
Plaintiff may have been confused by the Court’s description of his claim as arising under Bivens
rather than Section 1983, the Court was not characterizing it as Bivens claim in order blindside
him or make his ability to seek relief more difficult. To the contrary, the Court was liberally
construing Plaintiff’s Amended Complaint and interpreted it as seeking relief under either the
FTCA or Bivens because his assertion of constitutional violations against federal officials plainly
does not fit within the scope of Section 1983.
Notwithstanding Plaintiff’s confusion and exasperation with the Court, he has given no
basis for this Court to reconsider its previous Order of Service. As the Court previously observed,
in order to state a Bivens claim Plaintiff needs to allege facts showing the personal involvement
of the defendants in the action. He has not alleged how Defendants Petrucci, Pliler, LeMaster,
Elmore, Walls, or Heuett were personally involved in this case. Plaintiff need not be excessively
discouraged by the Court’s holding. The Court has not dismissed claims against those Defendants
with prejudice. When a court dismisses a claim without prejudice that means the defendant can
attempt to amend his complaint to cure any deficiencies identified by the court. Plaintiff can
further amend his complaint to describe what conduct Defendants Petrucci, Pliler, LeMaster,

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Elmore, Walls, and/or Heuett individually engaged in that he believes constituted a violation of
his rights. Likewise, the Court did not dismiss claims against Defendants Grove, Linley, or Stewart
at all. Accordingly, Plaintiff can simply proceed with his claims against those three individuals
without amending his complaint any further if he so wishes.
Separately, Plaintiff asks that this case “proceed to a discovery and deposition process to
assess the accusations of upper level administrators.” (ECF No. 17.) This request is premature
and is based on a misunderstanding of the ordinary trajectory for litigation. Defendants have not
yet been served or responded to Plaintiff’s Amended Complaint, accordingly, this Court does not
yet have jurisdiction over those Defendants and cannot compel them to disclose anything to
Plaintiff at this stage. Separately, the type of discovery requested by Plaintiff—i.e., discovery in
order to find out if he has a claim against unidentified upper level administrators—would be
inappropriate at any stage because this Court has not been given the identity of the subjects of the
requested discovery. Instead, the ordinary next steps in this case would be: (1) Plaintiff can either
further amend his complaint or proceed on his Amended Complaint against Defendants Grove,
Linley, and Stewart, then (2) defendants will either answer or file a motion to dismiss the
complaint, and then (3) if no motion is filed by defendants, defendants instead choose to answer
the complaint, or the Court denies defendants’ motions, then discovery will begin to take place,
beginning with initial disclosures pursuant to Fed. R. Civ. P. 26(1). Accordingly, Plaintiff’s
request to compel unspecified discovery is denied, without prejudice to renewal at a later point in
this litigation.
B.

Request for an Extension of Deadline to Amend Complaint
The Court grants Plaintiff an extension of 45 days to file a Second Amended Complaint.

His deadline to submit a Second Amended Complaint is October 22, 2021. As Plaintiff discussed
in his motion, he did not intend to bring a FTCA claim and disagrees with the Court’s
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characterization of his complaint as arising under the FTCA. He does not need to bring a FTCA
claim and need not assert one in his Second Amended Complaint. Separately, though Plaintiff
believes that he should be able to bring a Section 1983 claim, he has not identified any defendants
that are state officials or persons acting under state color, and accordingly does not have a
cognizable Section 1983 claim. If he wishes to assert a Bivens claim against the federal officials
he has identified as defendants (which, again, is functionally similar to a Section 1983 claim), then
he can amend his complaint to cure deficiencies relating to those claims identified herein and in
the Court’s Order of Service.
C.

Application for Pro Bono Counsel
Plaintiff applies for the Court to request pro bono counsel. (ECF No. 18.) The factors to

be considered in ruling on an indigent litigant’s request for counsel include the merits of the case,
litigant’s efforts to obtain a lawyer, and litigant’s to gather the facts and present the case if
unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v.
Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which
command[s] the most attention.” Cooper, 877 F.2d at 172. At this stage of the litigation, the Court
has assessed that Plaintiff has failed to plead certain claims and granted Plaintiff leave to file an
amended complaint to cure those deficiencies. It is either too early in the proceedings for the Court
to assess the merits of the action or the (lack of) merits weigh against Plaintiff’s request for counsel.
Accordingly, Plaintiff’s motion for counsel is denied without prejudice to renewal at a later date.
CONCLUSION
The Court DENIES Plaintiff’s motion for reconsideration of its Order of Service (ECF No.
17) and his motion for appointment of counsel (ECF No. 18), without prejudice. To the extent that
Plaintiff seeks pre-service discovery of Defendants that request is also DENIED. Plaintiff’s
application for an extension of his deadline to file a Second Amended Complaint is GRANTED.
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Plaintiff may file a Second Amended Complaint on or before October 22, 2021. A Second
Amended Complaint form is attached to this Order.
The Clerk of the Court is kindly directed to terminate the Motions at ECF Nos. 15, 17, and
18. The Clerk of the Court is further directed to mail a copy of this Order to Plaintiff and show
proof of service on the docket.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not
be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf.
Coopedge v. United States, 369 U.S. 438, 444-45 (1962).

Dated: September 7, 2021
White Plains, New York

SO ORDERED:

________________________________
NELSON S. ROMÁN
United States District Judge

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Case 7:21-cv-04763-NSR Document 19 Filed 09/07/21 Page 7 of 12

I.

BASIS FOR JURISDICTION

Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of
cases can be heard in federal court: cases involving a federal question and cases involving
diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United
States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332,
a case in which a citizen of one State sues a citizen of another State or nation, and the amount
in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may
be a citizen of the same State as any plaintiff.
What is the basis for federal-court jurisdiction in your case?
☐ Federal Question
☐ Diversity of Citizenship
A. If you checked Federal Question
Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship
1. Citizenship of the parties
Of what State is each party a citizen?
The plaintiff ,

, is a citizen of the State of
(Plaintiff’s name)

(State in which the person resides and intends to remain.)
or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.
If more than one plaintiff is named in the complaint, attach additional pages providing
information for each additional plaintiff.

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If the defendant is an individual:
The defendant,

, is a citizen of the State of
(Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.

If the defendant is a corporation:
The defendant,

, is incorporated under the laws of

the State of
and has its principal place of business in the State of
or is incorporated under the laws of (foreign state)
and has its principal place of business in

.

If more than one defendant is named in the complaint, attach additional pages providing
information for each additional defendant.

II. PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional
pages if needed.

First Name

Middle Initial

Last Name

Street Address

County, City

State

Telephone Number

Zip Code

Email Address (if available)

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B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the
correct information is not provided, it could delay or prevent service of the complaint on the
defendant. Make sure that the defendants listed below are the same as those listed in the
caption. Attach additional pages if needed.
Defendant 1:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 2:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 3:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

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Defendant 4:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

III. STATEMENT OF CLAIM
Place(s) of occurrence:

Date(s) of occurrence:

FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and what each defendant personally did or failed to do that harmed you. Attach
additional pages if needed.

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INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical
treatment, if any, you required and received.

IV. RELIEF
State briefly what money damages or other relief you want the court to order.

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Case 7:21-cv-04763-NSR Document 19 Filed 09/07/21 Page 12 of 12

V. PLAINTIFF’S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported
by existing law or by a nonfrivolous argument to change existing law; (3) the factual
contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery;
and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil
Procedure 11.
I agree to notify the Clerk's Office in writing of any changes to my mailing address. I
understand that my failure to keep a current address on file with the Clerk's Office may
result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated

Plaintiff’s Signature

First Name

Middle Initial

Last Name

Street Address
County, City
Telephone Number

State

Zip Code
Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:
☐ Yes

☐ No

If you do consent to receive documents electronically, submit the completed form with your
complaint. If you do not consent, please do not attach the form.

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