Bamann v. Patel et al
Filing
28
ORDER denying without prejudice to renew 16 Motion to Appoint Counsel; denying without prejudice 21 Motion to Compel. Signed by Hon. Jonathan W. Feldman on 9/23/2011. (RJO)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DONALD P. BAMANN,
DECISION & ORDER
10-CV-6301
Plaintiff(s),
v.
DENNIS PATEL, PATEL GINA and
MICHAEL PATEL,
Defendant(s).
Preliminary Statement
This
employment
plaintiff’s
discrimination
employment
with
action
defendants.
stems
In
from
his
pro
se
Complaint,
plaintiff alleges, inter alia, that the defendants violated his
civil rights by unlawfully discriminating against him based on his
race and religion and by subjecting him to unlawful retaliation for
filing a complaint.
(Docket # 1).
Currently pending before the
Court is plaintiff’s motion to appoint counsel (Docket # 16) and
defendants’ motion to compel (Docket # 21).
Discussion
Plaintiff’s Motion to Appoint Counsel: Plaintiff claims that
the appointment of counsel is necessary because of his “lack of
assets & current income,” as well as the “complicated issues”
involved with litigating the instant action.
(Docket # 16).
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.
Applying
the
factors
set
forth
in
Hodge,
assuming
that
plaintiff’s allegations satisfy the initial threshold showing of
merit, I nevertheless conclude that appointment of counsel is not
warranted at this particular time. The factors to be considered in
ruling on a motion for the appointment of counsel include “the
merits of plaintiff's case, the plaintiff's ability to pay for
private counsel, his efforts to obtain a lawyer, the availability
2
of counsel, and the plaintiff's ability to gather the facts and
deal with the issues if unassisted by counsel.”
Cooper v. A.
Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989).
On the record
currently before the Court, plaintiff has not made an adequate
showing that these factors warrant the appointment of counsel.
Indeed, other than plaintiff's claimed lack of funds, there are no
factors
currently
supported
by
the
record
that
warrant
the
appointment of counsel.
The factual circumstances surrounding plaintiff’s claims do
not appear to be inordinately complicated.
Plaintiff claims that
he worked for defendants’ business, “The Budget Inn.”
also resided at his place of employment.
Plaintiff
A dispute arose as to
plaintiff’s pay and whether the rent he owed had been properly
offset by his salary and plaintiff was terminated from his job and
evicted from the hotel. Plaintiff claims the termination and
eviction were based on, among other things, race and religious
discrimination.
The factual issues alleged in the Complaint are
not unusually complex, and, at least at this point in time, Mr.
Bamann has shown that he is capable of prosecuting his case, as he
has drafted coherent pleadings, attached relevant documents to his
Complaint,
process.
and
appears
equipped
to
understand
the
litigation
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
3
ability to
present
his
case”).
Given
the
limited
resources
available with respect to pro bono counsel, I find no “special
reason” why appointment of counsel at this stage would be more
likely to lead to a just determination.
See Harris v. McGinnis,
No. 02 Civ. 6481(LTSDF), 2003 WL 21108370, at *2 (S.D.N.Y. May 14,
2003)(application denied where plaintiff “offered no special reason
why appointment of counsel would increase the likelihood of a just
determination”); see also Ruszkowski v. Kaleida Health Sys., No.
06-CV-715S(F),
2007
WL
4380160,
at
*2
(W.D.N.Y.
Dec.
13,
2007)(Title VII employment discrimination case in which court found
“no reason to appoint counsel” because plaintiff had demonstrated
that “he is reasonably capable of prosecuting this matter”).
Accordingly, plaintiff’s motion to appoint counsel (Docket #
16) is denied without prejudice to renew.
Plaintiff may consult
with the Western District pro se office attorneys for questions on
process and procedure.
Defendants’ Motion to Compel: In their motion to compel,
defendants seek responses to their Interrogatories dated December
1, 2010.
(Docket # 21).
After the defendants’ motion was filed
plaintiff served his responses to defendants’ Interrogatories. See
Docket
#
26.
However,
in
further
support
of
their
motion,
defendants argue that plaintiff’s responses to Interrogatories Nos.
1-4, 6, 9-11 and 15-16 are insufficient and request that the Court
Order plaintiff to provide more complete responses and produce the
4
documents referred to in his responses.
See Docket # 25.
The Court, having reviewed the Interrogatories, the hand
written answers filed by plaintiff and the papers in support of
(Dockets ## 21, 25) and in opposition to (Docket # 26) the motion
to compel has determined that plaintiff need not supplement his
answers at this time.
Defense counsel has stated in his papers
that he intends on deposing plaintiff in the near future.
are several ways to obtain discovery in litigation.
There
Often, what
would be a fairly straightforward discovery method when used with
respect to a party that has a lawyer becomes complicated and
cumbersome when seeking the same information from a pro se party
who
files
handwritten
responses.
The
language
used
in
the
Interrogatories themselves contain phrases and language that nonlawyers would call “legalese.”
The use of legal phrases and terms
can be confusing and easily misunderstood by the non-lawyer.
The
Court determines here that the information defendants seek can be
more easily and efficiently obtained by asking simple, direct
questions of plaintiff at a deposition.
The use of a deposition to
obtain the information will also speed up the discovery process and
put the case in a posture where the parties can make dispositive
motions.
If, after completion of the deposition, defense counsel
needs additional information or documentation, he may apply to this
Court for leave to serve additional interrogatories or document
demands.
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Conclusion
Plaintiff’s motion to appoint counsel (Docket # 16) is denied
without
prejudice
to
renew.
Defendants’
motion
to
compel
supplemental answers to certain Interrogatories (Docket # 21) is
denied without prejudice.
SO ORDERED.
______________________________
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated:
September 23, 2011
Rochester, New York
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