Daniels v. Douglas et al

Filing 40

-CLERK TO FOLLOW UP-ORDER granting 34 Motion to Dismiss for Failure to State a Claim. Signed by Hon. Hugh B. Scott on 9/25/2013. (JRA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
John Daniels,
Plaintiff,
Hon. Hugh B. Scott

10CV885
(Consent)1

v.

Decision &
Order
Doctor Douglas et al.,
Defendant.
_________________________________________
Before the Court is the defendants’ motion for partial dismissal of the complaint. (Docket
No. 34).

Background
In his initial complaint, the plaintiff, John Daniels’ (“Daniels”), asserts that Dr. Douglas,
Dr. Lewis2 and Nurse Arnold3 denied him proper medical treatment while he was incarcerated at

1

The parties consented to the jurisdiction of the Magistrate Judge. (Docket No. 9)

2

The record does not reflect that personal service was effectuated upon Dr. Lewis
inasmuch as the process was returned unexecuted. (Docket No. 22). However, answers to the
original and supplemental complaints had already been filed on behalf of Dr. Lewis. These
answers do not assert a lack of personal jurisdiction over Dr. Lewis (Docket No. 6 and 20). Thus,
Dr. Lewis has submitted to the jurisdiction of the Court pursuant to Rule 12(b) of the Federal
Rules of Civil Procedure.
3

The plaintiff does not provide the first names of the defendants.
1

the Orleans Correctional Facility (“OCF”). (Docket No. 1). Among other things, Daniels alleges
that the defendants failed to properly treat him for testicle pain relating to hypogondadism
(Docket No. 1 at ¶¶ 9-10). The plaintiff claims that the infectious disease specialist appointed by
DOCCS to address the plaintiff’s HIV related medical concerns prescribed testosterone cypionate
for this condition. (Docket No. 1 at ¶ 11). Daniels asserts that his condition is outside the scope
of Dr. Douglas’ and Dr. Lewis’ medical experience and requested that he be sent to see a
urologist and a hormonal specialist. The plaintiff states that these requests were denied. (Docket
No. 1 at ¶¶ 12-15). Daniels asserts that this testosterone level was too high and that Dr. Douglas
and Dr. Lewis made adjustments to his prescribed testosterone dosage. The plaintiff contends
that as a result of these adjustments, he experienced an over active urination condition, extreme
testicle pain, testicle shrinkage, and constant pain running down his arm into his finger tips.
(Docket No. 17-21). Daniels claims that on more than one occasion, Nurse Arnold “ejected over
half of plaintiff’s replacement shot on the floor,” telling Daniels that his testosterone level was
too high and that the testosterone shots were making him aggressive. (Docket No. 1 at ¶ 22). The
plaintiff further asserts that when he advised Dr. Douglas that he was experiencing the pain in his
shoulder, arm and fingers, Dr. Douglas did not refer him to a neurologist or provide pain
medication, but referred Daniels to a mental health specialist. (Docket No. 1 at ¶ 25). Daniels
claims that because the defendants could not get his testosterone under control, they terminated
his testosterone replacement therapy with complete disregard to his health. (Docket No. 28-29).
The plaintiff claims that this conduct violated his Eight Amendment rights. (Docket No. 1 at ¶

2

32).4
After the defendants’ answer to the initial complaint was filed (Docket No. 6) and a
scheduling order was issued (Docket No. 8), Daniels moved to supplement his complaint
(Docket No. 11). The defendants advised the Court that they did not oppose the motion to
supplement. (Docket No. 16). Thus, the plaintiff’s motion was granted and the U.S. Marshal was
directed to serve the defendants. The plaintiff’s supplemental complaint names 8 new individual
defendants, 5 John Doe5 defendants and the County of Orleans6 as defendants. The newly named
defendants include: Sibatu Khahaifa, Superintendent of the OCF (“Khahaifa”); Mr. Fitts,
Supervisor of Inmate Grievances at OCF (“Fitts”); Ms. Neal, Nurse Administrator at OCF

4

Daniels states that the defendant’s “violated plaintiff’s right to be free from cruel and
unusual punishment by tampering with, and experimenting with the plaintiff’s testosterone
replacement therapy.” (Docket No. 1 at ¶ 32). Daniels also asserts that the defendants violated his
First Amendment right to “petition for redress of grievance” but does not appear to state the
factual basis of any such claim. (Docket No. 1 at ¶ 32).
5

One of the John Doe defendants, John Doe 4, has been identified and service was
executed upon Michael Hogan, Commissioner of the New York State Office of Mental Health
(“OMH”) (Docket No. 31). The remaining John Doe defendants, who have not yet been
identified, are intended to represent “the supervisor and staff of the Correspondence Department
at OCF (the mail room staff at OCF) [John Does 1-3] and the “Unit Chief of the New York State
Office of Mental Health” [John Doe 5].
6

The County of Orleans has not yet been served in this matter. The only allegation
relating to The County of Orleans contained in the Supplemental Complaint is that it was the
“moving force” behind the defendants’ actions pursuant to the “official unwritten policy
established at [the Orleans Correctional Facility] by defendant Khahaifa for the County of
Orleans.” (Docket No. 17 at ¶ 5). It appears that the plaintiff mistakenly believes that the Sibatu
Khahaifa, the Superintendent of the Orleans Correctional Facility, works for Orleans County. The
Orleans Correctional Facility is a state facility that has no connection to the County of Orleans.
The plaintiff has failed to articulate any relationship between Khahaifa and Orleans County.
Daniels has failed to allege any conduct on behalf of any employee of Orleans County. Inasmuch
as the plaintiff’s Supplemental Complaint has failed to include facts which state a claim against
the County of Orleans, the Supplemental Complaint is dismissed as against the County of
Orleans pursuant to 28 U.S.C. §1915(e)(2).
3

(“Neal”); Ms. Hicks, Correctional Counselor at OCF (“Hicks”); Ms. Caswell, Correctional
Counselor at OCF (“Caswell”); Ms. Hernandez, Correctional Counselor at OCF (“Hernandez”);
B. Abrunzo (“Abrunzo”), Supervisor of Inmate Grievances at the Elmira Correctional Facility
(“ECF”); and J. Northrup, Nurse Practioner at ECF (“Northrup”). In the Supplemental
Complaint, Daniels alleges that he was retaliated against for filing a law suit in violation of New
York State Corrections Law § 138(4) and that “OCF defendants” deliberately created unsafe
living conditions in violation of New York Corrections Law §70(2)(c). (Docket No. 17 at ¶19).
In this regard, the plaintiff claims that while incarcerated at ECF, Nurse Northrup denied Daniels
his “Andro Gel” treatment which had been prescribed. The plaintiff asserts that he filed a
grievance based upon Northrup’s conduct. (Docket No. 17 at ¶¶20-27). Daniels contends that in
retaliation for filing the grievance, he was immediately transferred from ECF to the Wyoming
Correctional Facility (“WCF”). (Docket No. 17 at ¶ 28). The plaintiff states that at WCF he was
initially housed with an individual named “Streets” who was a member of the “Bloods” gang.
Due to threats from Streets and other gang members, Daniels was moved to the other side of the
facility and eventually placed in protective custody. (Docket No. 29-31). Daniels was then
transferred to OCF, where he contends he had previously had “multiple incidents” with members
of the Bloods housed there. He advised officials at OCF of this history during processing and
was placed directly in the Special Housing Unit (“SHU”) for safety reasons. (Docket No. 17 at
¶¶32- 35). Daniels asserts that despite this safety concern, he was not transferred out of OCF in
retaliation because he had filed the law suit against the OCF medical staff. The plaintiff’s request
for “protective custody” status was also denied and the plaintiff was directed to leave SHU.
Daniels refused to leave SHU due to his personal safety concerns. He received a misbehavior
4

report for failing to leave SHU and was eventually sentenced to 30 days in SHU based upon the
alleged infraction. (Docket No. 17 at ¶¶36-46). Daniels asserts that he wrote to Neal regarding to
his inadequate medical treatment at OCF (Docket No. 17 at ¶47). The plaintiff states that he
wrote to DOCCS’ Counsel’s Office and the Committee on Open Government complaining of
defendant Caswell’s failure to process a Freedom of Information Act [“FOIA”] request, but that
the mail room staff refused to send his letter to the Committee on Open Government because
they did not consider it to be “legal” mail. (Docket No. 17 at ¶¶48-51). Daniels claims that he
wrote to Dr. Lewis to complain that he was not getting the Andro Gel treatment, but that Dr.
Lewis did not respond. (Docket No. 53). After serving his 30 day SHU sentence, Daniels was
again told he was to leave SHU, but he refused to leave. (Docket No. 17 at ¶55). He again
received a misbehavior report for failing to leave SHU and was eventually sentenced to 60 days
of SHU based upon that infraction. (Docket No. 17 at ¶56-57). On June 15, 2011, defendant
Hernandez submitted a transfer request on Daniels behalf, but was subsequently advised by
Hernandez that the request was denied. (Docket No. 17 at ¶¶ 58-59). On June 17, 2011, the
plaintiff asserts that he was taken to an outside hospital because he had passed out due to chest
pain, difficulty breathing and anxiety from the isolation. He was returned to OCF on June 18,
2011 with medication for his blood pressure and anxiety, and placed on a medical diet. After
staying in the OCF infirmary for two days, he was returned to SHU on June 20, 2011. (Docket
No. 17 at ¶¶60-62). Daniels states that he suffered an anxiety attack on June 19, 2011 but was not
provided his anxiety medication. He also asserts that he requested mental heath service, but was
not seen by anyone from mental health and did not receive prescribed medical care. (Docket No.
17 at ¶¶ 63-65). Daniels claims that on June 20, 2011, Dr. Lewis “retained” the plaintiff’s HIV
5

medications forcing Daniels to miss 10 doses of HIV medications and that Dr. Lewis failed to do
anything to relieve the pain the plaintiff was experiencing. (Docket No. 17 at 66-67). Daniels
claims that he submitted a request for medical records, but did not receive any response (Docket
No. 17 at ¶69). He states that he wrote defendant Neal on July 15, 2011 regarding his medical
treatment and that Neal responded by advising Daniels that his request for testosterone treatment
was pending approval from “Albany.” (Docket No. 17 at ¶¶70-71). Finally, Daniels states that he
wrote to defendant Caswell on July 18, 2011 regarding his request for mental health treatment
and his transfer request. (Docket No. 17 at ¶ 72). Based upon these allegations, the Supplemental
Complaint asserts that following additional claims:
1.

Retaliation by OCF staff for filing a §1983 action (Docket
No. 17 at ¶¶ 74-76).

2.

Interference with Plaintiff’s legal mail by the OCF mail
room staff. (Docket No. 17 at ¶¶77-79).

3.

Violation of 7 N.Y.C.R.R. §5.35(d) based upon Caswell’s
refusal to process plaintiff’s April 29, 2011 FOIA request.
(Docket No. 17 at ¶80).

4.

Deliberate indifference by Neal in refusing to address
plaintiff’s 8th Amendment claims regarding Dr. Lewis’s
“medical mistreatment.” (Docket No. 17 at ¶¶81-84)

5.

Deliberate indifference with respect to plaintiff’s serious
medical needs by Dr. Lewis and Dr. Douglas (Docket No.
17 at ¶¶ 85-94).

6.

Unlawful punitive confinement of the plaintiff in SHU in
violation of the 8th Amendment (Docket No. 17 at ¶¶95100).

7.

Deliberate indifference as to the mental health needs of
inmates by Khahaifa and OMH (Docket No. 17 at ¶¶ 101-

6

110).7
8.

Manipulation of the grievance program by defendant Fitts
in violation of the plaintiff’s First, Eighth and Fourteenth
Amendments. (Docket No. 17 at ¶¶111 - 112).

9.

Khahaifa maintained policies condoning the violation of
plaintiff’s rights and the deliberate indifference to his
medical needs (Docket No. 17 at ¶¶ 113- 122).

10.

Northrop’s interference with the plaintiff’s prescribed
medical treatment (Docket No. 17 at ¶¶123 -128).

11.

Abrunzo’s interference with plaintiff’s grievances against
Northrop (Docket No. 17 at ¶¶ 129 - 134).

Defendants’ Motion for Partial Dismissal
Standard of Review
The defendants move to dismiss some of the claims in the Complaint and Supplemental
Complaint pursuant to rule 12(b)(6) and Rule 12(c). (Docket No. 34). Rule 12(c) of the Federal
Rules of Civil Procedure provides that “[a]fter the pleadings are closed but within such time as
not to delay the trial, any party may move for judgment on the pleadings.” Courts faced with
motions under Rule 12(c) apply the same standard used to decide motions brought under Rule
12(b)(6). Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir.2001).
Accordingly, the court accepts the material facts alleged in the complaint as true and draws all
reasonable inferences in favor of the plaintiff and against the defendants. See Chance v.
Armstrong, 143 F.3d 698, 701 (2d Cir.1998); Cohen v. Koenig, 25 F.3d 1168, 1171–72 (2d
7

The plaintiff appears to assert this claim on behalf of himself an other inmates. This is
not a class action lawsuit and Daniels is the only named plaintiff. Inasmuch as the plaintiff is not
an attorney, he cannot represent other inmates at OCF. For the purposes of this action, this claim
will be construed as being asserted only as to Daniels.
7

Cir.1994); Atlantic Mutual Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d
Cir.1992). However, legal conclusions, deductions or opinions couched as factual allegations are
not given a presumption of truthfulness. Albany Welfare Rights Org. Day Care Ctr., Inc. v.
Schreck, 463 F.2d 620 (2d Cir.1972), cert. denied, 410 U.S. 944, 93 S.Ct. 1393, 35 L.Ed.2d 611
(1973). The court is required to read the complaint broadly and with great latitude on a motion to
dismiss. Yoder v. Orthomolecular Nutrition Inst., 751 F.2d 555, 558 (2d Cir.1985). The court's
function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial
but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden,
754 F.2d 1059, 1067 (2d Cir.1985).
The Supreme Court has clarified the pleading standard required to withstand a motion to
dismiss. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for relief will ... be a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal citation omitted). “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations. When
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id.; see also Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 565-66 (2007)(Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact)). Under Iqbal, factual allegations must be sufficient
to support necessary legal conclusions. Iqbal, 556 U.S. at 680-681. “A court ‘can choose to begin
by identifying pleadings that, because they are no more than conclusions, are not entitled to the
8

assumption of truth.’” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010) (quoting Iqbal, 556
U.S. at 680). The Court must then consider the factual allegations in the complaint to determine
if they plausibly suggest an entitlement to relief. Iqbal, 556 U.S. at 681; see also Harris v. Mills,
572 F.3d 66, 72 (2d Cir.2009).
Thus, while the pleading standard Rule 8 announces does not require detailed factual
allegations, it demands more than unadorned, conclusory accusations. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action is not
sufficient. To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. The plausibility requirement is
not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant
has acted unlawfully. Where a complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between possibility and plausibility of entitlement to
relief. Iqbal, 556 U.S. at 681.

Official Capacity Claims Brought Against the Individual Defendants
The defendants seek to dismiss the §1983 and state law claims in the Complaint and
Supplemental Complaint to the extent that they are asserted against the individual defendants in
their official capacities. (Docket No. 35 at page 3-5). The Eleventh Amendment's grant of
absolute immunity to the states extends to claims for damages against state officials sued in their
official capacity. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105
9

L.Ed.2d 45 (1989). Eleventh Amendment immunity typically deprives courts of jurisdiction over
suits brought by private parties against State entities. Bd. of Trs. of Univ. of Ala. v. Garrett, 531
U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). However, exceptions to this immunity
exist when: (1) Congress has statutorily abrogated immunity, (2) the state voluntarily waives
such immunity, or (3) the plaintiff sues for “prospective injunctive relief” from violations of
federal law under the Ex Parte Young doctrine. In Re Deposit Ins. Agency, 482 F.3d 612, 617
(2d Cir.2007). Congress has neither abrogated immunity with respect to Section 1983, 1985, or
1986 claims, Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), nor
with respect to State law claims. Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 540–41,
122 S.Ct. 999, 152 L.Ed.2d 27 (2002). Second, New York has not waived its immunity to such
claims. Finkelman v. New York State Police, 2007 WL 4145456, at *3 (S.D.N.Y. Nov.15, 2007)
(explaining New York has not waived immunity to Sections 1983, 1985, and 1986 claims);
Martin v. Baruch Coll., 2011 WL 723565, at *2 (S.D.N.Y. Feb. 18, 2011) (explaining New York
has not waived its immunity to state law claims brought in federal court). Thus, to the extent that
plaintiff seeks money damages from the defendants in their official capacities, the Eleventh
Amendment bars such claims. See Kentucky v. Graham, 473 U.S. 159, 169 (1985); Dunn v.
Carrier, 2005 WL 1332761, at *2 (2d. Cir. 2005); Eng v. Coughlin, 858 F.2d 889, 897 (2d
Cir.1988); Amaker v. New York State Dept. of Correctional Services, 435 Fed.Appx. 52 (2d. Cir.
2011).
The plaintiff argues that to the extent that the defendant’s motion to dismiss applies to the
plaintiff’s claims under the Rehabilitation Act (“RA”) or the Americans with Disabilities Act
(“ADA”) they should be denied. (Docket No. 37 at page 7). The Complaint states that the
10

plaintiff’s claims are being brought under the First and Eighth Amendments to the United States
Constitution. (Docket No. 1 at page 1). The plaintiff does not assert that Dr. Lewis or Dr.
Douglas failed to provide adequate medical treatment to him based upon his disability. There is
no mention whatsoever of the ADA or the RA in the original Complaint. The Supplemental
Complaint also states that the plaintiff’s claims are being brought under the First, Eighth and
Fourteenth Amendments. (Docket No. 17 at page 1). Neither the preliminary statement or
jurisdiction statement refer to the ADA or the RA.8 Although the plaintiff’s Supplemental
Complaint states that he was prevented from filing claims under the ADA (Docket No. 17 at page
2) and states that he wrote to defendant Neal about his medical treatment under Title II of the
ADA Act and §504 of the RA (Docket No. 17 at ¶¶ 47, 82), the plaintiff does not set forth the
elements or a claim under the ADA or the RA. Instead, Daniels’ asserts that Neal, as Nurse
Administrator, failed to see that Daniels received proper medical care in retaliation for bringing
this law suit against Dr. Douglas and Dr. Lewis. (Docket No. 17 at ¶ 84). Such a retaliation claim
is not based upon the plaintiff’s disability. Reading the Complaint and Supplemental Complaint
liberally, the plaintiff does not assert claims under the ADA or the RA. Cabassa v. Smith, 2010
WL 786312, at *3 (N.D.N.Y. 2010) (holding that a “challenge to the adequacy of medical care or
health services is not a claim of ‘illegal disability discrimination’ as contemplated” by the ADA);
8

To establish a prima facie case under the §504 of the Rehabilitation Act, a plaintiff
must allege: (1) that he or she is a person with disabilities under the Rehabilitation Act, (2) who
has been denied benefits of or excluded from participating in a federally funded program or
special service, (3) solely because of his or her disability. Bryant v. New York State Educ. Dept.,
692 F.3d 202 (2d. Cir. 2012). To state a prima facie claim under the ADA, a plaintiff must show:
1) he is a person with a disability as defined by statute; 2) he is otherwise qualified for the benefit
in question; and 3) he was excluded from the benefit due to discrimination based upon disability.
Randolph v. Rodgers, 170 F.3d 850 (8th Cir. 1999).
11

Adams v. Hunsberger, 262 Fed.Appx. 478 (3d. Cir. 2008)(plaintiff failed to state a claim against
any of the Appellees under the Americans with Disabilities Act, as he did not allege any
discriminatory conduct based on his disability.); Rashad v. Doughty, 4 F. App'x 558, 560 (10th
Cir.2001)(“[t]he failure to provide medical treatment to a disabled prisoner, while raising Eighth
Amendment concerns in certain circumstances, does not constitute an ADA violation”).
Thus, to the extent the plaintiff seeks monetary damages against the individual defendants
in their official capacities, the motion to dismiss is granted.9

State Law Claims Barred by Corrections Law §24
The defendants also seek to dismiss the plaintiff’s state law claims against the individual
defendants in their personal capacities because they are barred by New York State Corrections
Law §24. (Docket No. 35 at page 7). Section 24 provides immunity for DOCCS employees from
lawsuits based on acts or omissions within the course of their employment, and requires that such
actions be brought in the New York Court of Claims as a claim against the state. N.Y. Correct.
Law § 24; see also Ierardi v. Sisco, 119 F.3d 183, 186–87 (2d Cir.1997). Section 24 is not a bar
to claims against corrections officers and employees under §1983. See Haywood v. Drown, 556
U.S. 729, 740–41, 129 S.Ct. 2108, 173 L.Ed.2d 920 (2009). However, it does provide immunity
for claims under state laws. “Such immunity is available whether the action is pursued in a state
court or, under pendent jurisdiction, in a federal court.” Ierardi, 119 F.3d at 187. District courts
9

Here, the plaintiff does seek injunctive relief compelling “the defendants” to provide
the plaintiff with adequate medical care. (Docket No. 17 at page 29). However, Daniels is no
longer at the OCF or the ECF. While this does not necessarily moot his claim for injunctive
relief, it appears that none of the individual defendants are currently involved in his medical care.
12

should dismiss such claims for lack of subject matter jurisdiction. Baker v. Coughlin, 77 F.3d 12,
15–16 (2d Cir.1996); see also Blanche, 2009 WL 2499737 at *8; Joy v. New York, No. 5:09 Civ.
841, 2010 WL 3909694, at *4–5 (N.D.N.Y. Sept. 30, 2010) (collecting cases). Thus, the
plaintiff’s claims based upon the alleged violation of New York law asserted against the
defendants in their personal capacities are dismissed.

Service Issues
As noted above, four of the five John Doe defendants have not yet been identified. The
plaintiff contends that the identity of these individuals is uniquely within the possession of the
defendants. (Docket No. 38). It is not clear from the record whether the plaintiff has presented
sufficient information to the defendants to enable these individuals to be identified. On or before
October 11, 2013, counsel for the defendants shall advise the Court of why the identities of
these individuals cannot be ascertained. See Valentin v. Dinkins, 121 F.3d 72, 75 (2d
Cir.1997).

Appointment of Counsel
The plaintiff has moved for the appointment of counsel (Docket No. 38). There is no
constitutional right to appointed counsel in civil cases. However, under 28 U.S.C. § 1915(e), the
Court may appoint counsel to assist indigent litigants. See, e.g., Sears, Roebuck & Co. v. Charles
W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). Assignment of counsel in this matter
is clearly within the judge's discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). The
factors to be considered in deciding whether or not to assign counsel include the following: (1)
13

Whether the indigent’s claims seem likely to be of substance; (2) Whether the indigent is able to
investigate the crucial facts concerning his claim; (3) Whether conflicting evidence implicating
the need for cross-examination will be the major proof presented to the fact finder; (4) Whether
the legal issues involved are complex; and (5) Whether there are any special reasons why
appointment of counsel would be more likely to lead to a just determination. Hendricks v.
Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Hodge v. Police Officers, 802 F.2d 58 (2d
Cir. 1986); Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.2001);
Abdur-Raqiyb v. Erie County Medical Center, 2006 WL 1800710, at *1 (W.D.N.Y.,2006).
The Court has reviewed the facts presented herein in light of the factors required by law
as discussed above. At this time, it does not appear the legal issues presented are not unduly
complex. Further, based upon the motion practice in this case, it appears that the plaintiff can
adequately prosecute his claim pro se. Based on a review of the above factors, the plaintiff's
motion for appointment of counsel is denied without prejudice at this time. It is the plaintiff's
responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C. § 1654.

Conclusion
The defendant’s motion to dismiss is granted consistent with the above. The plaintiff’s
motion for appointment of counsel is denied without prejudice at this time.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this
Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor
person is denied. Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917, 8 L. Ed.2d 21 (1962).
Further requests to proceed on appeal as a poor person should be directed, on motion, to the
14

United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal
Rules of Appellate Procedure.
So Ordered.

/ s / Hugh B. Scott
United States Magistrate Judge
Western District of New York
Buffalo, New York
September 25, 2013

15