Mitchell et al v. New York State Department of Correctional Services et al
Filing
98
DECISION & ORDER denying without prejudice 68 Motion to serve written depositions upon unidentified inmates; denying without prejudice 93 Motion to Appoint Counsel. It is plaintiff responsibility to retain an attorney or press forward with this action pro se. Signed by Hon. Marian W. Payson on 8/25/2011. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DONTIE S. MITCHELL,
DECISION & ORDER
Plaintiff,
06-CV-06278CJS
v.
NEW YORK STATE DEPARTMENT
OF CORRECTIONAL SERVICES, et al.,
Defendant.
By order dated July 17, 2007, the above-captioned matter has been referred to the
undersigned for the supervision of pretrial discovery and the hearing and disposition of all
non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). (Docket # 13).
Pro se plaintiff Dontie S. Mitchell (“Mitchell”) has filed this lawsuit against
defendants under 42 U.S.C. § 1983 for various alleged constitutional violations, including the
misuse of mechanical restraints and improper denial of meals conforming to Mitchell’s religious
beliefs. (Docket # 10).
Currently pending before this Court are Mitchell’s motions to serve written
deposition questions and his fourth request for appointment of counsel. (Docket ## 68, 93).
I. Leave to Take Written Depositions
Mitchell has moved for leave to take written depositions of all defendants and
unidentified inmate witnesses, pursuant to Rule 31 of the Federal Rules of Civil Procedure.
(Docket # 68). Defendants oppose the motion on the basis that Mitchell has failed to present a
plan proposing a procedure for conducting the depositions, such as who will arrange for and pay
the stenographer and other associated costs. (Docket # 81). In reply, Mitchell reasserts that he
seeks to serve written deposition questions, to which he contends defendants may respond by
affidavit or declaration. (Docket # 90). Further, Mitchell proposes to identify potential inmate
witnesses by posting notices in various correctional facilities describing the nature of the instant
action so that interested inmates may contact him. (Id.).
Rule 31 of the Federal Rules of Civil Procedure provides that, except in certain
limited circumstances, a party may without leave of court serve written deposition questions
upon any party or witness not confined in prison. Fed. R. Civ. P. 31. The Rule requires,
however, that an officer record the deposition and certify it. Fed. R. Civ. P. 31(b); 30(b)(5),
(c)(3). As defendants note, Mitchell has failed to propose a plan addressing the method of
recording the depositions, identifying an officer to conduct them or how the costs shall be borne.
Accordingly, Mitchell’s motion to serve written deposition questions upon defendants is denied
without prejudice to renewal upon compliance with the requirements of Federal Rules of Civil
Procedure 28, 30 and 31. See Woodward v. Mullah, 2009 WL 4730311, *5 (W.D.N.Y. 2009);
Beckles v. Artuz, 2005 WL 702728, *2 (S.D.N.Y. 2005). Mitchell is further reminded, as he is
likely aware, that other, less burdensome and costly methods of discovery are available to him,
such as written interrogatories, which may be served upon parties pursuant to Federal Rule of
Civil Procedure 33.
Further, in order to depose any non-party inmate witnesses, Mitchell must seek
leave of court and must demonstrate that the proposed deponents have relevant, discoverable
information. Fed. R. Civ. P. 26(b), 30, 31. Here, Mitchell has not identified the inmates he seeks
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to depose; therefore, he cannot show that the depositions sought are relevant. In addition,
Mitchell must serve subpoenas in accordance with Federal Rule of Civil Procedure 45 and bear
all associated costs. See Woodward v. Mullah, 2009 WL 4730311 at *5. Mitchell is cautioned
that in order to serve subpoenas upon other inmates, he must follow the DOCS procedures for
inmate-to-inmate contact. See Murray v. Fischer, 2009 WL 2843271, *2 (W.D.N.Y. 2009).
Accordingly, Mitchell’s motion to serve written depositions upon unidentified inmates is denied
without prejudice to renewal upon a proper showing as discussed above.
II. Appointment of Counsel
It is well-settled that there is no constitutional right to appointed counsel in civil
cases. Although the Court may appoint counsel to assist indigent litigants pursuant to 28 U.S.C.
§ 1915(e), see, e.g., Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22,
23 (2d Cir. 1988), such assignment of counsel 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.
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
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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).
The Court must consider the issue of appointment carefully, of course, because
“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, Hendricks v. Coughlin, 114 F.3d at 392; Cooper v. A. Sargenti Co., Inc., 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 little merit).
As a threshold matter, the Court notes that Mitchell has been given leave to
proceed in forma pauperis. (Docket # 8). The Court is unable to ascertain, however, at this stage
of the litigation, whether his claims likely have merit. In any event, Mitchell has failed to
demonstrate that his case is complex or that he will be unable to adequately litigate his claims
without assistance of counsel. Rather, Mitchell’s submissions to this Court, in this and other
litigation, demonstrate his ability to both investigate the crucial facts of this matter and litigate
the issues. In addition, the Court also notes that there is a limited number of local attorneys
available to handle cases on a pro bono basis. Cooper, 877 F.2d at 172 (“every assignment of a
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volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a
deserving cause.”). Based on this review, plaintiff’s motion for appointment of counsel (Docket
# 93) is DENIED without prejudice at this time. It is plaintiff’s responsibility, therefore, to
retain an attorney or press forward with this action pro se.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
August 25 , 2011
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