Brown v. Chappius et al

Filing 63

DECISION and ORDER granting in part and denying in part 36 Motion for Joinder; denying 37 Motion to Compel; denying 38 Motion to Amend or Correct; denying 38 Motion to Compel; denying 39 Motion to Compel; denying 40 Motion to Compel; denying 41 Motion to Compel; denying 47 Motion for Discovery; denying 48 Motion to Appoint Counsel ; denying 50 Motion for Discovery. Signed by Hon. Leslie G. Foschio on 5/6/2014. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
CARL BROWN,
DECISION AND ORDER
Plaintiff,
v.

13-CV-105A(F)

PAUL CHAPPIUS, JR., CRAIG DIEGO, STEPHEN
WENDERLICH, PAUL YOUMANS, JAMEY TAYLOR,
DANIEL STAIGHT, and KIRBY BUNNELL
Defendants.
________________________________________
APPEARANCES:

CARL BROWN, Pro Se
01-A-0717
Upstate Correctional Facility
309 Bare Hill Road
P.O. Box 2001
Malone, NY 12953
ERIC T. SCHNEIDERMAN
Attorney General, State of New York
Attorney for Defendants
KATHLEEN M. KACZOR
Assistant New York Attorney General, of Counsel
Main Place Tower
350 Main Street
Buffalo, NY 14202

JURISDICTION
This case was referred to the undersigned on February 5, 2013, by Honorable
Richard J. Arcara, for all pretrial proceedings. The matter is presently before the court
on Plaintiff’s Motions for Joinder (Doc. No. 36), filed December 2, 2013; to Compel
(Doc. No. 37), filed December 5, 2013; to Amend and to Compel (Doc. No. 38), filed
December 5, 2013; to Compel (Doc. No. 39), filed December 5, 2013; to Compel
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Discovery (Doc. No. 40), filed December 5, 2013; to Compel (Doc. No. 41), filed
December 5, 2013; for Discovery (Doc. No. 47), filed January 10, 2014; to Appoint
Counsel (Doc. No. 48), filed January 10, 2014; and Plaintiff’s Letter Motion for
Discovery (Doc. No. 50), filed January 14, 2014.

BACKGROUND and FACTS 1
Plaintiff Carl Brown (“Plaintiff”), currently incarcerated at Upstate Correctional
Facility, and proceeding pro se, commenced this § 1983 action on February 5, 2013,
alleging violations of his federal civil rights based on events that occurred while Plaintiff
was incarcerated at Elmira Correctional Facility (“Elmira”), and Southport Correctional
Facility (“Southport”). Defendants are all current or former employees of the New York
State Department of Corrections and Community Supervision (“DOCCS”). On July 25,
2013, Plaintiff filed an amended complaint (Doc. No. 34) (“Amended Complaint”),
asserting claims for relief challenging conditions of his confinement including, failure to
protect, denial of medical treatment, deprivation of food, deprivation of property, and
retaliation for exercising his civil rights.
Plaintiff alleges that after being denied a shower by Corrections Officer (“C.O.”)
Morris (“Morris”), he filed a grievance. Amended Complaint at 10. In response to the
grievance Morris told inmates and other C.O.s about Plaintiff’s case, which Plaintiff
maintains was the equivalent of an extortion threat. Id. Plaintiff wrote Defendant
Superintendent of Elmira, Paul Chappius, Jr. (“Chappius”), a letter, indicating that a

1

The Facts are taken from the pleadings and motion papers filed in this action.
2

number of inmates was threatening to extort him. 2 Id. at 5. Plaintiff believed that the
inmates’ threats stemmed from Plaintiff being incarcerated on a rape conviction and
because his father is Barry Gordy, Jr., an alleged important figure in the rhythm and
blues music business. Id. Plaintiff claims that Chappius violated his Eighth Amendment
rights by allowing Morris to tell others about his case. Id. Plaintiff claims that it was this
violation that resulted in him being stabbed by several inmates. Id.
In a second cause of action, Plaintiff alleges that although he notified Defendant
Elmira Deputy Superintendent, Wenderlich (“Wenderlich”) of the threats by other
inmates in April and June of 2012, Wenderlich took no action in response to the threats
against Plaintiff. Amended Complaint at 9. When Plaintiff was moved to the G-Block in
Elmira he informed Defendant Sergeant Youmans (“Youmans”) of the threats, but
Youmans advised Plaintiff that he was too busy to assist Plaintiff with regard to the
threats. Id. Two weeks later, Plaintiff told Defendant Sergeant Powers (“Powers”) of the
threats, but Powers did nothing in response to the threats. Id. Plaintiff notified
Wenderlich of the threats two more times, but Wenderlich never responded to Plaintiff’s
notifications. Id. Plaintiff was stabbed eight times by inmates (“the stabbing incident”) 3,
while Defendants C.O. Bunnell (“Bunnell”), C.O. Taylor (“Taylor”), and C.O. John Doe
(“Doe”) observed. Id. Morris allegedly provided the inmates with the weapons used to
stab Plaintiff. Id. at 12. After the stabbing, Plaintiff claims he was denied medical

2

The nature of the alleged extortion attempt, i.e., financial or other considerations, by other inmates is not
in the record.
3
Plaintiff indicates that he communicated with Defendants, leading up to this stabbing, during the period
of April through June 2012; however, no specific date of the stabbing has been alleged by Plaintiff. Some
exhibits Plaintiff filed with his complaint are dated February 8, 2012. Because Plaintiff refers to only one
stabbing at issue, references to the stabbing incident are to the stabbing, regardless of when the stabbing
occurred.
3

attention by Bunnell. Id. at 9. Plaintiff states that after two hours another inmate, Troy
Harris (“Harris”), who gave a statement about the stabbing incident, 4 summoned Taylor
for medical attention. Id. Plaintiff was brought to an outside hospital, where he stayed
for six days. 5 Id. at 12.
Upon his return to Elmira, Plaintiff was placed in disciplinary housing by
Defendant C.O. Staight (“Staight”), in response to Plaintiff’s accusation that Morris
provided inmates with the weapons used to attack Plaintiff. Amended Complaint at 9.
While in disciplinary housing Plaintiff was denied food, showers, and legal mail. Id.
Plaintiff informed Chappius, Wenderlich, Defendant C.O. Diego (“Diego”), and Youmans
about the deprivation, but no action was taken to remedy the deprivation. Amended
Complaint at 11. Plaintiff was then transferred to Southport, where Defendant C.O.
Miller (“Miller”) brought him legal mail and delivered Plaintiff’s property, but trial
transcripts, a television, and Plaintiff’s copy of the Quran were missing, for which
Plaintiff filed grievances. Id.
Plaintiff alleges that he was continuously held in disciplinary housing in retaliation
for filing grievances. Amended Complaint at 13. Further, inmates continuously cut,
stabbed, and threw feces at Plaintiff, which Plaintiff attributes to Defendants informing
other inmates about the nature of Plaintiff’s criminal conviction. Id. Plaintiff also claims
he suffered other civil rights violations while housed at DOCCS’s at Attica (2003),
Clinton (2007), Wende (2010), Chemung (2011), and Auburn 6 facilities. Id.

4

The identity of the person whom Harris gave the statement is not in the record.
The dates of Plaintiff’s hospitalization are not in the record.
6
The date of the alleged Auburn violation is not in the record.
4
5

Plaintiff claims Defendants Chappius, Wendelich, Diego, and Youmans violated
his Eighth Amendment rights by refusing to provide Plaintiff protection and failing to
respond to notices of threats, Defendants Morris, Bunnel, Taylor, and Staight violated
Plaintiff’s Fourteenth Amendment rights by placing him in disciplinary housing for filing
grievances and depriving him of his legal work, and Defendants Morris, Taylor, and
Staight violated Plaintiff’s Eighth Amendment rights by providing weapons to inmates,
used to attack Plaintiff. Amended Complaint at 13.
Plaintiff filed a Motion for Joinder (Doc. No. 36) on December 2, 2013, to which
Defendants submitted a Memorandum in Opposition (Doc. No. 44) on January 3, 2014.
Plaintiff filed four Motions to Compel dated December 5, 2013 (Doc. Nos. 37, 39, 40,
and 41), in response to which Defendants filed the Memorandum in Opposition of [sic]
Plaintiff’s Motions to Compel (Doc. No. 46) on January 6, 2013. Plaintiff filed a response
to Defendants Memorandum on January 22, 2014. Plaintiff filed a Motion to Amend and
Compel (Doc. No. 38) on December 5, 2013, to which Defendants filed a Memorandum
in Opposition (Doc. No. 45) on January 3, 2013. Plaintiff also filed Motions for Discovery
(Doc. No. 47) on January 10, 2014, to Appoint Counsel (Doc. No. 48) on January 10,
2014, and a Letter Motion for Discovery (Doc. No. 50) on February 14, 2014, to which
Defendants have not filed responses.
Based on the following, Plaintiff’s Motion for Joinder (Doc. No. 36) is GRANTED
in part and DENIED in part; Plaintiff’s Motions to Compel (Doc. Nos. 37, 38, 39, 40, 41,
47,and 50) are DENIED; Plaintiff’s Motion to Amend (Doc. No. 38) is DENIED; and
Plaintiff’s Motion to Appoint Counsel (Doc. No. 48) is DENIED.

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DISCUSSION
1. Motion for Joinder
Plaintiff filed a motion seeking permissive joinder under Rule 20 of six additional
parties, who are current or former DOCCS employees. Plaintiff’s Motion for Joinder
(Doc. No. 36) ¶ 2. The parties Plaintiff wishes to add as defendants include: C.O. M. Hill
(“Hill”), Nurse B. Furco (“Furco”), and Doctor D. Gage (“Dr. Gage”), all employed Sing
Sing Correctional Facility (“Sing Sing”); Corrections Sergeant Jeffrey Powers (“Powers”)
at Elmira; Inmate Grievance Supervisor William Abrunzo (“Abrunzo”) at Albany Central
Office of DOCCS; and Acting DOCCS Commissioner Anthony Annucci (“Annucci”). Id.
The claims Plaintiff seeks to allege against the proposed defendants include that
Powers was made aware of the dangers Plaintiff faced, prior to the alleged stabbing
incident at Elmira, yet failed to protect Plaintiff; Abrunzo failed to ensure grievances
relative to the stabbing incident were filed and that Annucci failed to intervene or
mitigate conditions affecting Plaintiff, resulting in the stabbing incident; Hill, as a female
DOCCS employee, violated procedures established for searching male Muslim inmates
by conducting a body search of Plaintiff, despite being aware that Plaintiff is a Muslim;
and that Furco and Dr. Gage denied Plaintiff medical assistance and confiscated a cane
Plaintiff needed to walk. Id. Plaintiff makes no attempt in his Motion for Joinder (Doc.
No. 36), at amending the pending claims in his Amended Complaint.
Under Fed. R. Civ. P. 20, Plaintiff may join Defendants into one action if “any
right to relief is asserted against them . . . with respect to or arising out of the same
transaction, occurrence or series of occurrences” and if “any question of law or fact
common to all defendants will arise in the action.” Both elements must be met for
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joinder to be proper. Barnhart v. Town of Parma, 252 F.R.D. 156, 159 (W.D.N.Y. 2008)
(showing that joinder is improper unless both elements are established). While the
requirements are to be interpreted liberally, all of the requirements of the rule must still
be met and constrain the court’s discretion. Id. (discussing the broad discretion of the
court under Rule 20). In determining whether claims arise out of the same “transaction”
or “occurrence” under Rule 20, “courts are to look to the logical relationship between the
claims and determine ‘whether the essential facts of the various claims are so logically
connected that considerations of judicial economy and fairness dictate that all the
issues be resolved in one lawsuit.’” Id at 160. Plaintiff bears the burden of
demonstrating that joinder is proper under Rule 20. Id.
Preliminarily, the court observes that Plaintiff seeks to assert new claims against
those whom the Plaintiff seeks to join as defendants. As such, the court construes the
motion to join pursuant to Fed.R.Civ.P. 15 pertaining to motions to amend. Generally,
leave to file an amended complaint should be freely granted. Randolph v. Lindsay, 837
F. Supp.2d 160, 161 (W.D.N.Y. 2011). Where, however, as here, Plaintiff failed to file a
proposed amended complaint setting forth the present claims against the named
defendants, as required by Rule 15(a) of the Local Rules of Civil Procedure – W.D.N.Y.,
as well as the additional claims Plaintiff seeks to assert against the proposed
Defendants, “a movant’s failure to submit a proposed amended complaint constitutes
sufficient grounds to deny a motion to amend.” Murray v. New York, 604 F.Supp.2d 581,
588 (W.D.N.Y. 2009) (citing LaBarbara v. Ferran Enterprises Inc., 2009 WL 367611, at
*3 (E.D.N.Y. Feb. 10, 2009) (“In order to meet the requirements of particularity in a
motion to amend, a complete copy of the proposed amended complaint must
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accompany the motion so that both the court and the opposing party can understand
the exact changes sought.”)). Where, however, “the movant’s papers adequately
explain the basis for, and nature of, the proposed amendment, [ ], the failure to attach a
proposed amended complaint to the motion is not necessarily fatal.” Murray, 604
F.Supp.2d at 588. Nevertheless, in light of Plaintiff’s pro se status, and given that the
trial court has discretion whether to deny the motion for such failure, id. Plaintiff’s failure
to attach the proposed amended complaint is not fatal.
Plaintiff has not shown, for five of the six proposed defendants, that the relief
requested arises out of the same transaction and occurrences, or that it shares common
questions of law and fact. Specifically, the medical indifference claims Plaintiff seeks
against Furco and Dr. Gage are based on actions at Sing Sing; and, therefore, neither
present a common issue of law or fact nor arise out of the same stabbing incident at
Elmira alleged in the Complaint. Similarly, the religious freedom-based claim Plaintiff
seeks to assert against Hill also arose out of actions at Sing Sing, and, thus, presents
no issue of law or fact common to the stabbing incident alleged in the Complaint. Insofar
as Plaintiff seeks to add Annucci as a defendant, because Annucci did not take the post
of Acting Commissioner until May 2013, well after the stabbing incident alleged in the
Amended Complaint, Plaintiff’s proposed claim that Annucci was aware of the facts and
circumstances and failed to intervene is unfounded on its face.
Plaintiff also seeks to assert a claim that Abrunzo failed to ensure that Plaintiff’s
grievances in relation to the claimed incident were correctly filed. This proposed claim,
however, should be denied as futile because grievance procedures are voluntarily
provided by states, and are not constitutionally required. See Lewis v. Zon, 920
8

F.Supp.2d 379, 383 n.1 (W.D.N.Y. 2013) (citing Pine v. Seally, 2011 WL 856426, at *8
(N.D.N.Y. Feb. 4, 2001) (“[t]he law is well-settled that inmates do not have a
constitutional right to grievance procedures.”)). See also John Hancock Mut. Life Ins.
Co. v. Amerford Intern. Corp., 22 F.3d 458, 462 (2nd Cir. 1994) (denying motion to
amend where claim sought to be alleged is futile). Therefore, Plaintiff’s motion for
joinder with regards to Furco, Dr. Gage, Hill, Annucci, and Abrunzo is DENIED.
The claim Plaintiff seeks to allege against Powers, i.e., that Powers knew of the
threats against Plaintiff prior to the stabbing incident and failed to intervene, suggests it
arises out of a common issue of law or fact from the same stabbing incident alleged in
the complaint. Although Plaintiff’s failure to provide an amended complaint in
conjunction with the Motion for Joinder renders the court unable to determine the
precise allegations Plaintiff seeks to assert against Powers, Plaintiff’s failure to attach
the proposed amended complaint is not fatal here, because the basis and nature of the
allegation is clear from Plaintiff’s motion. See Murray, 604 F.Supp.2d at 588 (stating that
the failure to file the complaint with the motion is not fatal when it is clear what the
movant seeks to add). Plaintiff will be given an opportunity to file an amended complaint
to support the relief requested in the Motion for Joinder (Doc. No. 36).
Plaintiff’s Motion for Joinder (Doc. No. 36) with regards to Sergeant Jeffery
Powers is GRANTED; Plaintiff is directed to submit the Second Amended Complaint to
the Clerk of the Court who shall file the Second Amended Complaint, and cause the
U.S. Marshals to serve copies of the Second Amended Complaint upon the named
defendants.

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2. Motions to Compel
Plaintiff has filed six Motions to Compel (Doc. Nos. 37, 39, 40, 41, 47, and 50),
seeking to compel medical records, an inmate grievance report, trial transcripts,
stabbing incident papers, photographs, and statements (Doc. No. 37); medical records
(Doc. No. 39); medical records, employee lists from Elmira and Sing Sing, photographs
or videotapes from each physical confrontation Plaintiff was involved in while
incarcerated, each statement filed in regard to the stabbing incident, and colored
photographs of each facility where Plaintiff has been housed while incarcerated (Doc.
No. 40); medical records, a deposition of the Defendants’ attorney, and the names,
prisoner numbers, and pictures of each of the inmates involved in the stabbing incident
(Doc. No. 41); each Defendant’s background history for the past ten years and all
grievances filed against each Defendant while employed by DOCCS, photographs from
alleged physical confrontations occurring on June 8, 2012, July 7, 2005, May 25, 2003,
October 13, 2008, and one from Wende Correctional Facility7, all grievances Plaintiff
has filed while incarcerated and in DOCCS custody, names and statements from each
of Defendants’ proposed witnesses, Plaintiff’s medical records, pictures of each facility
in which Plaintiff has been housed while incarcerated, any injury responses for each
facility where Plaintiff has been housed, the number of lawsuits filed against each
Defendant, and Plaintiff’s property allegedly misplaced when Plaintiff was moved from
Elmira to Sing Sing (Doc. No. 47); and, lastly, pictures of the inside of G-Block, including

7

The date of the alleged physical confrontation at Wende Correctional facility is not in the record.
10

his cell, cells 7-14, the shower area, and the area where the officer’s sit (Doc. No. 50). 8
Additionally, Plaintiff asks the undersigned to re-send the missing page of the “Crime
and Sentence” that Plaintiff maintains the undersigned sent at an earlier date. Id.
Importantly, Plaintiff has not served any formal discovery requests on Defendants.
It is basic that a party seeking to compel discovery must first serve formal
discovery demands. Orraca v. Washborn, 2011 WL 4352716, at *1 (W.D.N.Y. Sept. 15,
2011) (“In the absence of proof of demands actually being served upon defendants, a
motion to compel [defendants’] response is premature.”). Because Plaintiff, in the
instant case, has yet to serve Defendants with any formal discovery requests, Plaintiff’s
motions to compel responses are thereby premature. If after Plaintiff serves formal
discovery, Defendants fail to produce timely responses, Plaintiff may refile his Motions
to Compel (Doc. Nos. 37, 39, 40, 41, 47, and 50) to the extent necessary. Therefore,
each of Plaintiff’s Motions to Compel (Doc. Nos. 37, 39, 40, 41, 47, and 50) are
DENIED, without prejudice, with regard to filing future motions to compel, in the event
Defendants fail to respond to properly served discovery demands.
Plaintiff additionally seeks relief in the form of prosecuting the inmates involved in
the stabbing incident. Plaintiff’s Motion to Compel (Doc. No. 41). However this court is
without any authority to commence a criminal prosecution against other inmates and
should seek relief with the District Attorney of Chemung county, who would have
jurisdiction over the Plaintiff’s accusations. See United States v. Stewart, 590 F.3d 93,
184 n. 20 (2d Cir. 2009) (acknowledging separation of powers “confers prosecutorial
8

Although Plaintiff does not specify at which correctional facility these areas referenced in Doc. No. 50
are located, the context of the request and the facts of this action strongly indicate they are located at the
DOCCS facility at Elmira, located in Chemung County.
11

authority exclusively on the executive branch and narrowly limits judicial inquiry into the
exercise of that authority.” (citing Harlan Associates v. Inc. Vill. of Mineola, 273 F.3d
494, 499 (2d Cir. 2001))). Therefore, Plaintiff’s Motion to Compel, with regard to
prosecuting inmates is DENIED.
3. Motion to Amend and Motion to Compel
Plaintiff filed a motion (Doc. No. 38) to amend, seeking to add Dr. Alam, Dr.
Gage, Furco, Hill, and Sergeant E. Kasper (“Kasper”), all employees at Sing Sing, “3
more at Sing Sing”, “N-John”, and Annucci as Defendants. As to Dr. Gage, Furco, Hill,
and Annucci, Plaintiff seeks, in the instant motion, to add essentially the same claims he
sought to add against the same proposed defendants in his earlier motion to amend,
i.e., Doc. No. 36, Discussion, supra, at 5-7. For the same reasons that the earlier motion
to amend was denied, i.e., because the proposed claims do not involve common
questions of law or fact, do not arise out of the same occurrence, or are futile, the
instant motion to amend, Doc. No. 38, is also DENIED as to Dr. Gage, Furco, Hill, and
Annucci.
With respect to Dr. Alam, “3 more at Sing Sing”, and “N-John”, Plaintiff fails to
specify the claim for relief he seeks to assert against each proposed defendant.
Additionally, Plaintiff failed to submit an amended complaint stating the claims he seeks
to assert against each of the proposed defendants. As discussed, Discussion supra, at
6-7, where “the movant’s papers adequately explain the basis for, and nature of, the
proposed amendment, [ ], the failure to attach a proposed amended complaint to the
motion is not necessarily fatal.” Murray, 604 F.Supp.2d at 588. Here, the court finds
Plaintiff’s assertions against each of the proposed defendants are ambiguous and, thus,
12

are not within the exception to the required filing of a proposed amended complaint.
Therefore, Plaintiff’s Motion to Amend (Doc. No. 38) with respect to Dr. Alam, “3 more at
Sing Sing”, and “N-John” is DENIED.
Additionally, Plaintiff moves to compel the discovery of the Sing Sing Employee
List. Plaintiff previously requested the Employee List from Sing Sing prison through the
use of a FOIL request; however, neither Sing Sing nor DOCCS is a party in this case.
Additionally, as discussed above, Discussion, supra, at 10, Plaintiff has not served
Defendants with formal discovery requests. For these reasons, Plaintiff’s Motion to
Compel (Doc. No. 38) is DENIED.
4. Motion to Appoint Counsel
Plaintiff requests the court appoint an attorney to aid the Plaintiff in the
prosecution of his case. Plaintiff’s Motion to Appoint Counsel (Doc. No. 48). There is no
constitutional right to appointment of counsel for litigants in civil cases. Cooper v.
Sargenti Co., 877 F.2d 170, 172-74 (2d Cir. 1989). District courts, nevertheless, have
broad discretion in deciding whether to appoint counsel. Hodge v. Police Officers, 802
F.2d 58, 60 (2d Cir. 1986). See also 28 U.S.C. § 1915(e)(1) (providing district courts
may “request an attorney to represent any person unable to afford counsel.”).
The court’s first inquiry is whether Plaintiff can afford to obtain counsel. Termite
Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (before the court is
required to make any other determination on a motion for appointment of counsel, the
court “must ascertain whether the litigant is able to afford or otherwise obtain counsel.”).
The same factors supporting in forma pauperis status will also establish indigence for
appointment of counsel. See Holmes v. Fischer, 2013 WL 3187083 at *13 (W.D.N.Y.
13

June 20, 2013)(citing Thomas v. Kelly, 2007 WL 958533, at *1 (S.D.N.Y. Mar. 28, 2007)
(“The indigence requirement is met insofar as the same factors considered in granting
[Plaintiff] permission to proceed in forma pauperis establish [Plaintiff’s] inability to afford
counsel.”)). In the instant case, the court granted Plaintiff’s request for permission to
proceed in forma pauperis on April 19, 2013 (Doc. No. 5); therefore, Plaintiff also
qualifies for purposes of qualifying for appointment of counsel.
The factors to be considered in deciding whether or not to assign counsel include
the following:
1. 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, 802 F.2d at
58. No single factor is controlling in a particular case; rather, “each case must be
decided on its own facts.” Hodge, 802 F.2d at 61.
The court must consider the issue of appointment carefully, of course, because
“every assignment of a volunteer lawyer to an underserving client deprives society of a
volunteer lawyer available for a deserving cause.” Cooper, 877 F.2d at 172. Therefore,
the court must look to the “likelihood of merit” of the underlying dispute, id. at 174, and
“even though a claim may not be characterized as frivolous, counsel should not be
14

appointed in a case where the merits of the . . . claim are thin and his chances of
prevailing are therefore poor.” Carmona v. United States Bureau of Prisons, 243 F.3d
629, 632 (2d Cir. 2001) (denying counsel on appeal where petitioner’s appeal was not
frivolous but nevertheless appeared to have little merit). The court has reviewed the
facts presented herein in light of the factors required by law. Based on this review, the
lack of strong specifics indicate Plaintiff’s claims lack likelihood of success. Plaintiff’s
motion for appointment of counsel is therefore DENIED without prejudice, and it is the
Plaintiff’s responsibility to retain an attorney or press forward with this lawsuit pro se, 28
U.S.C. § 1654.

15

CONCLUSION
Based on the foregoing, Plaintiff’s Motion for Joinder (Doc. No. 36) is GRANTED
in part and DENIED in part; Plaintiff’s Motion to Compel (Doc. No. 37) is DENIED;
Plaintiff’s Motion to Amend and Motion to Compel (Doc. No. 38) is DENIED; Plaintiff’s
Motion to Compel (Doc. No. 39) is DENIED; Plaintiff’s Motion to Compel Discovery
(Doc. No. 40) is DENIED; Plaintiff’s Motion to Compel (Doc. No. 41) is DENIED;
Plaintiff’s Motion for Discovery (Doc. No. 47) is DENIED; Plaintiff’s Motion to Appoint
Counsel (Doc. No. 48) is DENIED; and Plaintiff’s Letter Motion for Discovery (Doc. No.
50) is DENIED.
SO ORDERED.
/s/ Leslie G. Foschio
__________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

May 5, 2014
Buffalo, New York

Any appeal of this Decision and Order must be taken to by filing a notice of
appeal with the Clerk of Court within 14 days of the filing of this Decision
and Order pursuant to Fed. R. Civ. P. 72(a).

16