Gomez-Ka'Dawid v. Eagen et al

Filing 35

ORDER denying without prejudice to renew 27 Motion to Appoint Counsel ; denying as moot 31 Motion for Extension of Time to File. Signed by Hon. Jonathan W. Feldman on 3/20/2012. (RJO)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
YAHKIMA GOMEZ-KA’DAWID,
Plaintiff(s),
v.
LESTER WRIGHT, Assistant Deputy
Commissioner, DR. DEACEVEDO,
TICHENOR, DR. WHALEN, MR. B.
LECUYER, Head Nurse Practitioner,
MS. WREST, Nurse Practicioner, MS.
OBERTEAN, Nurse Practioner, R.
WOODS, Superintendent, LIEUTENANT
LAREAU, SERGEANT R. LYNCH, SERGEANT
P. WEST, SERGEANT MENARD, C.O. G.
DELANEY, C.O. MARTIN, C.O. TYLER
and RABBI FRIEDMAN,

DECISION AND ORDER
08-CV-6530

Defendant(s).

Preliminary Statement
Plaintiff brings the instant action pursuant to 42 U.S.C. §
1983 for alleged violations of his First, Eighth and Fourteenth
Amendment rights.

See Complaint (Docket # 1).

In his Complaint,

plaintiff alleges, inter alia, that he has suffered the denial of
his right to freely practice his religion, excessive harassment,
cruel and unusual punishment and use of excessive force.

Id.

Currently pending before the Court are plaintiff’s motions for
appointment of counsel (Docket # 27) and for an extension of time
(Docket # 31).
Discussion
I.

Plaintiff’s Motion to Appoint Counsel
With the instant motion to appoint counsel, plaintiff asserts

that the appointment of counsel is necessary because he “can’t
focus, concentrate, I continuously hear voices” and proclaims to
require “strong medication” for mental health issues.
27).

For

the

reasons

that

follow,

plaintiff's

(Docket #
motion

for

appointment of counsel (Docket # 27) is denied without prejudice to
renew.
Under 28 U.S.C. § 1915(e), the Court may appoint counsel to
assist indigent litigants.

Sears, Roebuck & Co. v. Charles W.

Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988).

An

assignment of counsel is a matter within the judge's discretion.
In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984).

“There

is no requirement that an indigent litigant be appointed pro bono
counsel in civil matters, unlike most criminal cases.”
Hopkins, 14 F.3d 787, 789 (2d Cir. 1994).

Burgos v.

The factors to be

considered in deciding whether or not to assign counsel were set
forth by the Second Circuit in Hodge v. Police Officers, 802 F.2d
58, 61-62 (2d Cir. 1986):
[T]he district judge should first determine
whether the indigent’s position seems
likely to be of substance.
If the claim
meets this threshold requirement, the court
should then consider the indigent’s ability
to investigate the crucial facts, whether
conflicting evidence implicating the need
for cross-examination will be the major
proof presented to the fact finder, the
indigent’s ability to present the case, the
complexity of the legal issues and any
special reason in that case why appointment
of counsel would be more likely to lead to
a just determination.
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Applying

the

factors

set

forth

in

Hodge,

I

find

that

plaintiff’s allegations satisfy the initial threshold showing of
merit.

See, e.g., Mackey v. DiCaprio, 312 F. Supp. 2d 580, 582

(S.D.N.Y. 2004)(court found plaintiff’s Eighth Amendment claims
that defendants subjected him to cruel and unusual punishment
satisfied the threshold showing of merit); Allen v. Sakellardis,
2003 WL 22232902, at *1-2 (S.D.N.Y. Sep. 29, 2003)(finding that
plaintiff’s allegations that corrections officers assaulted him
while he

was

restrained

might

have

merit).

However,

having

reviewed the Complaint and considered the nature of the factual and
legal issues involved, as well as the plaintiff's ability to
present his claims, I conclude that appointment of counsel is not
warranted at this particular time.

See Hodge, 802 F.2d at 61-62.

“Volunteer lawyer time is a precious commodity” that “should
not be allocated arbitrarily.” Cooper v. A. Sargenti Co., 877 F.2d
170, 172 (2d Cir. 1989).

Plaintiff has drafted coherent and

appropriate pleadings, his 39 page pro se Complaint is detailed in
nature and describes quite well the events surrounding his claims.
See Castro v. Manhattan E. Suite Hotel, 279 F. Supp. 2d 356, 358
(S.D.N.Y. 2003)(denying appointment of counsel after noting that
“there is no indication that [plaintiff] lacks the ability to
present his case”).

While the Court does not doubt plaintiff’s

mental health issues, the record here does not suggest that these
issues have “significantly hampered” his ability to prosecute his

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case.

Indeed, plaintiff’s motion for an extension and for a

preliminary injunction (Docket # 31), which was filed two months
after his motion to appoint counsel, reflect a well written,
coherent and rational request for relief. Accordingly, I find that
plaintiff’s

request

to

warranted at this time.

be

appointed

pro

bono counsel

is

not

See Walters v. NYC Health Hosp. Corp., No.

02 Civ. 751 (JGKDF), 2002 WL 31681600, at *2 (S.D.N.Y. Nov. 25,
2002)(finding that plaintiff’s arguments that his alleged mental
illness, limited knowledge of the law, and his belief that the case
was complex were belied by plaintiff’s extensive legal filings
which demonstrated that plaintiff’s “purported disability has not
significantly hampered Plaintiff’s ability to prosecute his case to
date”).

Plaintiff may consult with the Western District pro se

office for questions on process and procedure.

II.

Plaintiff’s Motion for an Extension
With the instant motion, plaintiff seeks an extension of time

to file a motion to join other parties or to amend pleadings.
(Docket # 31).

Pursuant to the Court’s Scheduling Order (Docket #

25), the deadline to file a motion to amend was August 8, 2011.
Plaintiff filed the instant motion on August 18, 2011, requesting
that the Court “forgive the tardy filing” and grant “an extension
of 60-90 days,” i.e. an extension until approximately November 8,
2011.

(Docket # 31).

To date, plaintiff has not filed a motion to

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join other parties or to amend pleadings.

Accordingly, the Court

hereby Orders that plaintiff’s motion for an extension (Docket #
31) is denied as moot.
Finally, all the deadlines in the Court’s Scheduling Order
(Docket # 25) entered on June 8, 2011 have expired.

Neither party

has requested an extension of time regarding discovery and defense
counsel has not made a dispositive motion or indicated an intention
to do so.

Accordingly, this Court will transfer the file to Judge

Larimer so that a trial date may be established.

Should Judge

Larimer determine that the appointment of counsel would provide
substantial assistance to plaintiff during trial he may, of course,
revisit the appointment of counsel issue (see Section I, supra) at
that time.

Conclusion
Plaintiff's motion to appoint counsel (Dockets # 27) is denied
without prejudice to renew. Plaintiff’s motion for an extension of
time (Docket # 31) is denied as moot.
SO ORDERED.

______________________________
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated:

March 20, 2012
Rochester, New York
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