Salgado v. New York State Dept. of Corr. & Community Supervision et al

Filing 63

DECISION AND ORDER denying 60 Motion to Appoint Counsel ; denying 61 Motion to Appoint Counsel ; denying 61 Motion to Stay. Status conference scheduled 10/4/2017 at 10:30 AM before Hon. Michael J. Roemer. Signed by Hon. Michael J. Roemer on 9/18/2017. (RAZ) Copy of Decision and Order and Pro Se Litigation Guidelines mailed to pro se plaintiff at Beaumont US Penitentiary.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________
ANTONIO SALGADO, JR.,
Plaintiff,

13-CV-1108-RJA-MJR
DECISION AND ORDER

v.
NYS DEPARTMENT OF CORRECTIONS
AND COMMUNITY SUPERVISION, et al.,
Defendants.
_______________________________
This case has been referred to the undersigned by the Honorable Richard J.
Arcara for all pre-trial matters, including the hearing and disposition of non-dispositive
motions. Before the Court are plaintiff Antonio Salgado Jr.’s motions to appoint counsel.
(Dkt. Nos. 60 and 61).

For the following reasons, the motions are denied without

prejudice.
Plaintiff, an inmate in the care and custody of the New York State Department of
Corrections and Community Supervision (“DOCCS”) at the time of the events relevant to
this lawsuit, filed the instant pro se action pursuant to Section 1983 of Title 42 of the
United States Code. (Dkt. No. 1). His request to proceed in forma pauperis was granted
on May 1, 2014. Plaintiff initially sued DOCCS, the Office of Mental Health (“OMH”) and
thirty-six individuals employed by either DOCCS or OMH. DOCCS and OMH were sua
sponte dismissed from the case on the basis of Eleventh Amendment immunity. (Dkt.
No. 7). On October 23, 2014, twenty-two of the remaining named defendants filed a
partial motion to dismiss. (Dkt. No. 21). Plaintiff then submitted a proposed amended
complaint which added two defendants and removed three. (Dkt. No. 31). On May 5,

2015, nineteen of the remaining defendants filed another partial motion to dismiss the
complaint. (Dkt. No. 33). Both motions to dismiss raised essentially the same arguments.
On September 15, 2016, this Court issued a Report, Recommendation and Order
accepting the proposed amended complaint (Dkt. No. 31), granting in part and denying in
part the motion to dismiss, and giving plaintiff permission to re-plead some of the
dismissed claims. (Dkt. No. 41). Plaintiff filed a second amended complaint on that same
day. (Dkt. No. 42). This Court’s Report and Recommendation was adopted in full by the
District Court on October 27, 2016, and the case was referred back to this Court for further
proceedings.

(Dkt. No. 44).

Defendants filed an answer to the second amended

complaint on January 31, 2017. (Dkt. No. 53).
On February 15, 2017, the Court conducted a preliminary pretrial conference in
this matter.

Counsel for defendants appeared in person and plaintiff appeared via

telephone conference. At that time, plaintiff informed the Court that he was having
difficulties receiving all of his paperwork because he had not yet arrived at his permanent
facility. It was then agreed to by all parties that the case would be held in abeyance until
plaintiff arrived at his permanent facility. The Court instructed plaintiff to advise the Court
when this occurred and to supply his permanent address. On May 22, 2017, the Court
received a letter from plaintiff advising that he had arrived at his permanent facility in
Beaumont, Texas. (Dkt. No. 55). A preliminary pretrial conference was then scheduled
for August 8, 2017. (Dkt. No. 57). However, the conference was not held on that date
because the Court was unable to reach plaintiff via telephone at Beaumont U.S.
Penitentiary. (Dkt. No. 58). The Court then entered a Case Management Order (“CMO”)

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setting forth a number of deadlines, including a deadline of September 22, 2017 for the
exchange of initial disclosures. (Dkt. No. 59). A copy of the CMO was mailed to plaintiff.
Since that time, plaintiff has filed two motions requesting appointment of counsel.
(Dkt. No. 60 and 61). Plaintiff’s reasons for requesting counsel include: (1) that he suffers
from mental and physical health issues, including glaucoma which makes it difficult for
him to read; (2) that his facility is constantly on lock-down and as a result he has not had
access to the law library and his property, including legal work, has been confiscated; (3)
he is indigent and lacks the funds for basic supplies such as copy paper, pens, etc.; (4)
the issues in the case are complex; (5) he wants the case “to be made a class-action”;
and (6) that he lacks the ability to understand court orders and requirements, including
the CMO and initial disclosures. Id. Plaintiff also indicates that he has contacted a
number of legal aid organizations for representation but has been unsuccessful in
securing counsel. Id. Plaintiff further requests that in the event counsel is not appointed,
the Court grant him a stay until his release date in nine months. Id. at 61.
There is no constitutional right to the appointment of counsel in civil cases.
However, pursuant to 28 U.S.C. §1915(e)(1), 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). The decision to appoint counsel lies clearly within the
Court’s discretion. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). Indeed, the
Court must consider the issue of appointment carefully, for “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., 877 F.2d 170, 172 (2d Cir. 1989).

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The factors a Court is to consider in deciding whether to appoint counsel include:
(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 or her claims; (3) whether conflicting
evidence implicating the need for cross-examination will be the major proof presented to
the fact-finder; (4) the indigent’s ability to present the case; (5) whether the legal issues
involved are complex; and (6) 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). See also Cooper, 877 F.2d 172 (appointment of counsel is not necessary for
“every case that survives a motion to dismiss”).

The Court must first consider the

likelihood of merit of the dispute, and “even though a claim may not be characterized as
frivolous, counsel should not be appointed in a case where the merits of the indigent’s
claim are thin and his chances of prevailing are therefore poor.” Carmona v. U.S. Bureau
of Prisons, 243 F.3d 629, 632 (2d Cir. 2001).
In light of these factors, the appointment of counsel is not warranted at this time.
Most significantly, the case is in its earliest stages—initial disclosures have not been
exchanged—and thus the Court cannot yet ascertain the merits of the dispute or whether
plaintiff’s claims are likely to be of substance. While plaintiff maintains that his physical
and mental health issues make it difficult for him to proceed or present his case, the Court
notes that plaintiff has drafted a complaint which, in substantial part, survived a motion to
dismiss and has written a number of letters which cogently explain his circumstances and
arguments to the Court. Plaintiff indicates that the legal issues are complex, however
they are not atypical of lawsuits involving allegations of the civil rights violations by an

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incarcerated, pro se plaintiff. Plaintiff’s other concerns, including the fact that his facility
is often on lock down, the condition and accessibility of the law library, and the limitations
he faces because he is indigent, are common to many incarcerated litigants. While the
Court recognizes that an incarcerated, pro se litigant may encounter more difficulties in
pursuing his or her case than a pro se litigant who is not incarcerated, this, in itself, is not
a valid reason for the appointment of counsel. If it were, every inmate involved in a civil
lawsuit would be entitled to the appointment of counsel.
It is noted that the Court’s decision herein does not preclude the appointment of
counsel later in this lawsuit, if warranted after the Court has a better understanding of the
details of plaintiff’s claims and the relevant facts and defenses. In addition, the Court will
send plaintiff, together with a copy of this Decision and Order, a copy of the Pro Se
Litigation Guidelines to help him better understand the CMO, initial disclosures, and other
Court rules and requirements. Finally, a status conference will be held on October 4,
2017 at 10:30 a.m., in order to address plaintiff’s request for a stay of this lawsuit until his
release date. At that time, the Court will extend, as appropriate, the dates set forth in the
Case Management Order, including the date for initial disclosures.
For these reasons, plaintiff’s motions to appoint counsel [Dkt. Nos. 60 and 61] are
denied without prejudice to plaintiff’s ability to re-apply for the appointment of counsel at
a later date or the Court’s ability to sua sponte re-examine this issue should
circumstances change. The Clerk of the Court is instructed to mail plaintiff a copy of the
Pro Se Litigation Guidelines. A status conference before this Court is scheduled for
Wednesday, October 4, 2017 at 10:30 a.m. The Attorney General is to contact the
plaintiff’s correctional facility and arrange for plaintiff to have access to a telephone and

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plaintiff’s legal papers at that time. The Attorney General is to contact the Court prior to
the conference with the telephone number and extension of the plaintiff. The Court will
initiate the call.

SO ORDERED.

Dated: September 18, 2017
Buffalo, New York
/s/ Michael J. Roemer
MICHAEL J. ROEMER
United States Magistrate Judge

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