Holmes v. Fischer et al

Filing 129

DECISION AND ORDER. Plaintiff's motion 128 to discharge his court-appointed counsel and revert to proceeding pro se is GRANTED. Plaintiff's time to file objections to the Report and Recommendation/Decision and Order filed February 10, 2016 127 , is extended to 3/25/2016. Signed by Hon. Leslie G. Foschio on 2/25/2016. -CLERK TO FOLLOW UP-(SDW) (Copy of Decision and Order mailed to Plaintiff at his current address of Sing Sing Correctional Facility).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________________
BRANDON HOLMES,
Plaintiff,
v.
BRIAN FISCHER, Commissioner of the New York
State Department of Correctional Serv., et al.,

DECISION
and
ORDER
09-CV-00829S(F)

Defendants.
______________________________________________
APPEARANCES:

THE REDDY LAW FIRM LLC
Attorneys for Plaintiff
PRATHIMA C. REDDY, of Counsel
455 Linwood Avenue
Buffalo, New York 14209
ERIC T. SCHNEIDERMAN
ATTORNEY GENERAL, STATE OF NEW YORK
Attorney for Defendants
DAVID J. SLEIGHT
Assistant Attorney General, of Counsel
350 Main Street
Suite 300A
Buffalo, New York 14202

By letter to the undersigned dated February 3, 2016 (Doc. No. 128) (“February 3,
2016 Letter”), Plaintiff advises there has been “a complete breakdown in the attorneyclient relationship” between Plaintiff and his court appointed counsel, Prathima C.
Reddy, Esq. (“Reddy”), and requests Reddy be discharged as his counsel and to revert
to his pro se status. Attached to the February 3, 2016 Letter is a copy of a grievance
Plaintiff filed against Reddy with New York Supreme Court, Appellate Division, Fourth
Department. Plaintiff had previously raised a similar complaint by letter dated
November 24, 2015 (Doc. No. 125) (“November 24, 2015 Letter”), in which Plaintiff also

seeks the discharge of Ms. Reddy and to revert to his pro se status, complaining of a
repeated failure to receive legal mail from his Reddy which has interfered with Plaintiff’s
meaningful participation in telephone calls with Reddy, and asserting Plaintiff wished to
assert several unspecified arguments in opposition to Defendants’ then pending motion
for summary judgment (Doc. No. 112). In a combined Report and Recommendation/
Decision and Order filed February 10, 2016 (“February 10, 2016 Decision and Order”)
(Doc. No. 127), the undersigned denied Plaintiff’s earlier request to discharge his courtappointed counsel because “Plaintiff, by requesting assignment of counsel, waived his
right to self-representation and does not have an unfettered right to demand such courtappointed counsel be discharged and return to his pro se status absent grounds
establishing Plaintiff’s assigned counsel has failed to act with reasonable diligence and
competence in prosecuting Plaintiff’s case.” February 10, 2016 Decision and Order at
48-49 (citing Taylor v. Dickel, 293 F.3d 427, 431-32 (8th Cir. 2002) (appointment of
counsel pursuant to § 1915(e) does not permit party to demand court discharge such
counsel and revert to pro se status; rather, to warrant discharge of assigned counsel
represented party must demonstrate “justifiable dissatisfaction” with assigned counsel)).
In issuing the February 10, 2016 Decision and Order, the undersigned found Plaintiff
had failed to establish the requisite criteria to warrant discharging his court-appointed
counsel.
In his most recent letter, however, filed after the February 10, 2016 Decision and
Order, Plaintiff further explains that there are “irreconcilable differences from a complete
breakdown in the attorney-client relationship.” February 3, 2016 Letter at 1. Plaintiff
also maintains that Reddy “called me today strictly to threaten me.” Id. Without

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expressing any opinion as to whether Reddy did, in fact, threaten Plaintiff, the court
finds that Plaintiff’s perception that Reddy has failed to effectively advocate on his
behalf sufficiently justifies Plaintiff’s dissatisfaction with Reddy’s representation to
support relieving Reddy of her duty to further represent Plaintiff, even though Plaintiff
will then revert to his pro se status. See Leftridge v. Conn. State Trooper Officer #
1283, 640 F.3d 62, 67 (2d Cir. 2011) (requiring pro se plaintiff to proceed by counsel in
a civil case violates 28 U.S.C. § 1654 which provides that in federal courts “the parties
may plead and conduct their own cases personally”); see also Norman v. Talcovitz,
1996 WL 648970, at * 1 (S.D.N.Y. Nov. 7, 1996) (observing that plaintiff “has dismissed
his court-appointed counsel and is now proceeding pro se. . . .”). Cf., Ceglia v.
Zuckerberg, No. 10-CV-00569A(F), slip op. at 6-11 (W.D.N.Y. Mar. 20, 2013) (denying
attorney’s motion to withdraw where record failed to establish a good cause for
withdrawal).
CONCLUSION
Based on the foregoing, Plaintiff’s motion (Doc. No. 128) to discharge his courtappointed counsel and revert to proceeding pro se is GRANTED. Plaintiff’s time to file
objections to the Report and Recommendation/Decision and Order filed February 10,
2016 (Doc. No. 127), is extended to March 25, 2016.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE

DATED:

February 25, 2016
Buffalo, New York
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