McCray v. The City of Albany New York, et al

Filing 57

ORDER denying 44 Motion to Appoint Counsel ; denying 50 Motion to Appoint Counsel ; denying 55 Motion to Amend or Correct. Signed by Hon. Hugh B. Scott on 5/4/2015. (Attachments: # 1 Appendix) (JRA)

-PS-O-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TERENCE SANDY MCCRAY,
Plaintiff,
13-CV-0949W(Sc)

Hon. Hugh B. Scott
-v-

CO AYERS, New York State Department of
Corrections, and CO ROSIA, New York State
Department of Corrections,
Defendants.

Report & Recommendation
and
Decision & Order

There are various motions pending before the Court in this case, including the plaintiff’s
motion for summary judgment (Docket No. 37), the defendant’s motion to stay summary
judgment (Docket No. 39), the plaintiff’s motions to appoint counsel (Docket No. 44 and 50),
and the plaintiff’s motion to amend. (Docket No. 55).

Background
The plaintiff, Terence Sandy McCray (“McCray”) commenced this action in the Northern
District of New York against numerous defendants including the City of Albany, various
prosecutors, probation officers, police officers, as well as corrections officers Jenkins, Ayers,
Roshia, Callieri and Fischer employed by the New York State Department of Corrections and
Community Supervision (“DOCCS”). (Docket No. 1). The plaintiff claimed that he had been
wrongfully convicted and asserted various civil rights and negligence claims. (Docket No. 1 at

pages 10-14). The plaintiff then filed an Amended Complaint (Docket No. 23).1 The Amended
Complaint named the same defendants but included more allegations and set forth claims of false
arrest (Docket No. 23, page 10), intentional infliction of emotional distress (Docket No. 23,
pages 10 and 69), abuse of process (Docket No. 23, pages 12 and 73), negligence (Docket No.
23, page 12), negligent misrepresentation (Docket No. 23, pages 14 and 77), denial of due
process (Docket No. 23, pages 14, 78 and 83), violation of “Monell/42 U.S.C. §1983" against
the City of Albany (Docket No. 23, pages 14, 86 and 90), negligent hiring (Docket No. 23, pages
14 and 98), sexual assault relating to a pat frisk (Docket No. 23 at page 65), fraud (Docket No.
23, page 74), and cruel and unusual punishment in violation of the Eighth Amendment (Docket
No. 23 at page 99).
District Judge Glenn Suddaby of the Northern District of New York severed the claims as
asserted against the DOCCS corrections officers and transferred those claims to this Court.
(Docket No. 26). Upon initial review in the Western District of New York, District Judge
Michael A. Telesca dismissed all of the plaintiff’s claims against Fischer, Jenkins and Callieri.
(Docket No. 28 at page 11). The Court directed that the Amended Complaint2 be served only
upon defendants Ayers and Roshia regarding the sole remaining pat-frisk/sexual assault claim.
(Docket No. 28 at page 11). With respect to this claim, the plaintiff asserts that his genitals were

1

The plaintiff submitted the Amended Complaint in several installments. The Court in the
Northern District directed that the installments be compiled into one document and filed as the
Amended Complaint. (Docket No. 22).
2

The initial service order inadvertently directed that the “complaint,” not the “amended
complaint” be served. A subsequent service order directed that the Amended Complaint be served
upon Ayers and Roshia. (Docket No. 33).
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grabbed and squeezed during a purported pat frisk, and subsequently, that defendant Rosia placed
his fingers into the plaintiff’s anus. (Docket No. 23 at pages 68-69).

Motion for Summary Judgment
The plaintiff has filed a motion for summary judgment with respect to his sexual assault
claim. (Docket No. 37).
Summary judgment is appropriate where there are no issues of material fact in dispute,
and the moving party is entitled to judgment as a matter of law. See Trans Sport, Inc. v. Starter
Sportswear, Inc., 964 F. 2d 186, 188 (2nd Cir. 1992) citing Bryant v. Maffucci, 923 F.2d 979,
982 (2d Cir. 1991). The non-moving party must, "demonstrate to the court the existence of a
genuine issue of material fact." Lendino v. Trans Union Credit Information, Co., 970 F.2d 1110,
1112 (2nd Cir. 1992), citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A fact is
material:
when its resolution would "affect the outcome of the suit under the
governing law" and a dispute about a material fact is genuine "if
the evidence is such that a reasonable jury could return a verdict
for the non-moving party."

General Electric Company v. New York State Department of Labor, 936 F.2d 1448, 1452 (2nd
Cir. 1991), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The nonmoving party must come forward with enough evidence to support a jury verdict ... and the ...
motion will not be defeated merely ... on the basis of conjecture or surmise.” Trans Sport, supra,
964 F.2d at 188. Summary judgment is appropriate "[w]here the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party." Nippon Fire & Marine Ins. Co.,
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Ltd. v. Skyway Freight Systems, Inc., 235 F.3d 53 (2nd Cir. 2000) quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Here, the plaintiff asserts that “there are [no] facts that can be disputed” regarding his
claim that he was sexually assaulted. (Docket No. 37 at page 1). In support of this argument, the
plaintiff points to the fact that the medical records reflect his complaints to Dr. Haimes and
Nurse Practicioner Sollotti regarding “extremely aggressive pat frisks.” Id. The medical records
do reflect that the plaintiff complained of sexually aggressive pat frisks. (Docket No. 37-1 at
pages 2-3). However, the recording of these complaints by the medical personnel only establishes
that the plaintiff complained of sexually aggressive pat frisks. This evidence does not foreclose
factual issues relating to whether any such conduct on the part of the defendants’ actually
occurred. The defendants have denied the conduct attributed to them by the plaintiff. (Docket
No. 35). The Court also notes that the plaintiff filed the instant motion prior to the exchange of
substantial discovery in this matter. (Docket No. 39-1 at ¶¶ 20-21). The defendants assert that
the Court should defer or deny the plaintiff’s motion as premature. (Docket No. 39-1 at ¶ 17, 25).
Under the circumstances in this matter, it appears that the instant motion was filed
prematurely. In any event, a question of fact exists as to whether any conduct by the defendants
amounted to a sexual assault of the plaintiff. It is recommended that the plaintiff’s motion for
summary judgment be denied without prejudice.

Motions to Appoint Counsel
The plaintiff has filed two motions seeking the appointment of counsel (Docket Nos. 44
and 50). There is no constitutional right to appointed counsel in civil cases. However, under 28
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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 MartinTrigona, 737 F.2d 1254 (2d Cir. 1984). 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
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).
In considering a motion for the appointment of counsel, the Court may also consider the
merits of the plaintiff’s claim. The Second Circuit has held that “every assignment of a volunteer
lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving
cause.” Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir.1989). Therefore, the Court
must first look to the “likelihood of merit” of the underlying dispute, Cooper, 877 F.2d at 174,
and “even though a claim may not be characterized as frivolous, counsel should not be 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
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little merit). See also Smolen v. Corcoran, 2013 WL 4054596 (W.D.N.Y.,2013)(In deciding
whether to grant a request to appoint pro bono counsel, district courts should evaluate several
factors, including the merits of the claim, the factual issues and complexity of the case, the
plaintiff's ability to present the case, and the plaintiff's inability to obtain counsel.).
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 unduly
complex. The plaintiff’s filings in this case reflect that he understands the issues presented and
can adequately articulate his factual and legal arguments. The plaintiff's motions for appointment
of counsel are denied. It is the plaintiff's responsibility to retain an attorney or press forward with
this lawsuit pro se. 28 U.S.C. § 1654.

Motion to Amend
The plaintiff has filed a document entitled “Notice of Dispositive Motion to
Revise/Amend/Correct And or Reflection of Vital Information To be Memorialized for the
Record.” (Docket No. 55). This document is not a motion seeking specific relief, but a
supplement to the plaintiff’s argument in support of his motions for the appointment of counsel.
Specifically, the plaintiff contends that the counsel for the defendants “conceded” that he should
have counsel appointed because the defendants’ counsel gave a “head nod” when the plaintiff
stated that he thought he should have appointed counsel. (Docket No. 55 at page 3). The plaintiff
also sets for additional legal arguments relating to the constitutional prohibition against cruel and
unusual punishment (Docket No. 55 at page 2) and an investigation by the New York State
Inspector General’s Office. (Docket No. 55 at pages 3-4).
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In light of the above, the Court need take no further action with respect to this document.
The motion should be terminated.

Subpoenas
The plaintiff has submitted a letter dated February 1, 2015 (attached) requesting the
issuance of subpoenas to take the depositions of several non-party individuals. Rule 45 of the
Federal Rules of Civil Procedure provides for the issuance of subpoenas to take depositions of
non-parties. The plaintiff also has been granted in forma pauperis status (“IFP”)(Docket No. 28).
A plaintiff who has been granted IFP status, is entitled to have any subpoenas served by the U.S.
Marshal in this case. Johnson v. Hubbard, 698 F.2d 286 (6th Cir.), cert. denied, 464 U.S. 917,
104 S.Ct. 282, 78 L.Ed.2d 260 (1983); United States Marshals Service v. Means, 741 F.2d 1053,
1055 (8th Cir., 1984); McNeil v. Lowney, 831 F.2d 1368 (7th Cir.,1987), cert. denied, 485 U.S.
965, 108 S.Ct. 1236, 99 L.Ed.2d 435 (1988); Boring v. Kozakiewicz, 833 F.2d 468 (3rd
Cir.,1987), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988); Tedder v. Odel,
890 F.2d 210 (9th Cir., 1989).
However, the IFP status does not relieve the plaintiff from having to pay the witness fees,
milage as well as the costs associated with the recordation and transcription of the deposition.
Under Rule 30(b)(3)(A) deposition testimony can be recorded by audio means. However, “the
advisory notes clarify that any such party ‘should understand that a transcript will be required ...
if the deposition is later to be offered as evidence a trial or on a dispositive motion under Rule
56.’ ” Gatling v. Coggiola, 2014 WL 2918600 (W.D.N.Y. 2014) quoting Sunegova v. Village of
Rye Brook, 2011 WL 6640424, *8 (S.D.N.Y.2011) (referring to Advisory Committee Notes
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(1993 Amendments)). See also Hudson v. Spellman High Voltage, 178 F.D.R. 29, 31
(E.D.N.Y.1998) (examining party obligated to provide typed transcript of portions of recorded
deposition on which that party intends to rely upon at trial). “Plaintiff's in forma pauperis status
does not excuse [him] from producing a certified transcript of her depositions of Defendants,
which is the ordinary practice in this court.” Sunegova, 2011 WL 6640424, *8. The costs of
recording the transcript is “usually borne by the party taking the deposition, even when that party
is proceeding pro se and granted in forma pauperis status.” Nowlin v. Lusk, 2014 WL 298155,
*9 (W.D.N.Y.2014); Doe v. United States, 112 F.R.D. 183, 184 (S.D.N.Y.1986) (“[A] defendant
is not required to advance a plaintiff's stenographic and transcription deposition expenses merely
because a plaintiff is unable to pay for such expenses”). Further, “federal courts are not
authorized to waive or pay witness fees on behalf of an in forma pauperis litigant.” Malik v.
Lavalley, 994 F.2d 90, 90 (2d Cir.1993); see also Abuhouran v. United States, 389 Fed.Appx.
179 (3d. Cir. 2010)(The in forma pauperis statute, 28 U.S.C. § 1915, makes no provision for
litigation expenses other than the reproduction of the record and transcripts. See 28 U.S.C. §
1915(c)).
In light of the above, the plaintiff’s request for subpoenas is denied without prejudice at
this time. The Court directs the plaintiff to formulate a plan as to how he would pay for the fees
and other costs associated with the taking of depositions in this case. The plaintiff may also wish
to consider using other discovery mechanisms to obtain the sought after discovery in this matter.
In this regard, a conference to discuss the status of any remaining discovery or other
pretrial proceedings in this matter shall take place on June 23, 2015 at 2:00 before the
undersigned.
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Inasmuch as the plaintiff is incarcerated, counsel for the defendant is directed to notify
the facility at which the plaintiff is located to ensure that arrangements are made by the facility to
allow the plaintiff with access to a telephone, as well as access to his legal papers relative to this
action. Counsel for the defendant is directed to advise the court of a telephone number to be
used for the conference.

Conclusion
Based on the above, the plaintiff’s motions for the appointment of counsel (Docket No.
44 and 50) are denied. The plaintiff’s “motion to amend” (Docket No. 55) is terminated as it is
not a motion seeking relief.
Also, for the reasons stated above, it is recommended that the plaintiff’s motion for
summary judgment (Docket No. 37) be denied without prejudice and the defendants’ motion to
stay or defer summary judgment (Docket No. 39) be granted to the extent that the plaintiff’s
motion is denied without prejudice.
Pursuant to 28 U.S.C. §636(b)(1), it is hereby ordered that this Report &
Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the
Report & Recommendation to all parties.
ANY OBJECTIONS to this Report & Recommendation must be filed with the Clerk
of this Court within fourteen(14) days after receipt of a copy of this Report &
Recommendation in accordance with 28 U.S.C. §636(b)(1), Rules 6(a), 6(e) and 72(b) of the
Federal Rules of Civil Procedure, as well as W.D.N.Y. Local Rule 72(a)(3).

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FAILURE TO FILE OBJECTIONS TO THIS REPORT & RECOMMENDATION
WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO
FILE OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER
BY THE DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED
HEREIN. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed2d 435 (1985); F.D.I.C. v.
Hillcrest Associates, 66 F.3d 566 (2d. Cir. 1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir.
1988); see also 28 U.S.C. §636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil
Procedure, and W.D.N.Y. Local Rule 72(a)(3).
Please also note that the District Court, on de novo review, will ordinarily refuse to
consider arguments, case law and/or evidentiary material which could have been, but was not,
presented to the Magistrate Judge in the first instance. See Patterson-Leitch Co. Inc. v.
Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to W.D.N.Y. Local Rule 72.3(a)(3),
“written objections shall specifically identify the portions of the proposed findings and
recommendations to which objection is made and the basis for such objection and shall be
supported by legal authority.” Failure to comply with the provisions of Rule 72.3(a)(3)may
result in the District Court’s refusal to consider the objection.
So Ordered.

/ s / Hugh B. Scott
United States Magistrate Judge
Western District of New York
Buffalo, New York
May 5, 2015
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