Frederick v. Shehan et al

Filing 114

DECISION AND ORDER denying 107 Motion to Appoint Counsel. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 8/2/17. (JPL) (A copy of this Decision and Order has been mailed to Plaintiff)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MICHAEL FREDERICK,
DECISION AND ORDER
Plaintiff,
6: 10-CV-06527 EA W

V.

PATRICK MURPHY, Officer, MICHAEL
ROBYCK, Officer, JAMIE ROBINSON, Officer,
DONALD HOLTON, Sergeant, and
VANDERGRIF, Officer,
Defendants.

INTRODUCTION
Plaintiff Michael Frederick ("Plaintiff') filed this action on September 15, 2010,
alleging violations of his civil rights. (Dkt. 1). Following discovery and dispositive
motions, Plaintiffs claims for excessive use of force, failure to supervise, and failure to
intervene remain. (See Dkt. 64; Dkt. 74). A jury trial is scheduled to begin on September
25, 2017. (Dkt. 109). Presently before the Court is Plaintiffs sixth motion to appoint
counsel. (Dkt. 107).
For the reasons stated below, Plaintiffs motion is denied.
FACTUAL BACKGROUND
In Plaintiffs most recent motion to appoint counsel, Plaintiff alleges that he has
severe mental health issues which will negatively impact his ability to prosecute his case
at trial.

(Id. at 2).

Plaintiff claims that he has been diagnosed with "Anti-social

personality Disorder, Impulse Control Disorder, Depression, [and] Thought Disorder."

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(Id.). Plaintiff attaches a psychological evaluation from the New York State Office of

Mental Health as evidence. (Id. at 7-11).
The evaluation does report that Plaintiff "has an extensive history of mental health
needs since incarceration," (id. at 7), although the needs apparently originate from "a
repetitive history of sexually acting-out behaviors," (id.). At the examination, Plaintiff
appeared well-groomed and was highly cooperative. (Id. at 8). He showed no cognitive
deficits or difficulties in understanding instructions. (Id.). Although an IQ test placed
Plaintiff's Full Scale IQ at 74 (a score which falls within the borderline range of
intellectual functioning), Plaintiff's work history, educational background (including an
11th grade education), and ability to read, suggest a higher level of functioning. (Id. at
7).

Plaintiff exhibited no outward signs of thought disorder or psychosis, and his

thoughts were logical and coherent. (Id. at 8).
Plaintiff described his behaviors and urges to the exammer, and reported an
extremely high sexual appetite prior to incarceration. (Id.). The reason for Plaintiff's
incarceration is reported as "Robbery 2nd, Sodomy 1st and Rape 1st." (Id. at 7). He had
no record of mental health treatment prior to his incarceration. (Id.).

In addition to

Plaintiff's sexual predilections, he was assessed as having a "high potential for suicide."
(Id. at 11 ). Plaintiff also reported an extensive history of drug and alcohol use. (Id. at 7).

The examiner concluded that Plaintiff required treatment for both significant
depression and thought disorder, and diagnosed severe depression with psychotic
features. (Id. at 10).

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DISCUSSION
Under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent
litigants, Sears, Roebuck & Co. v. Charles Sears Real Estate, Inc., 865 F .2d 22, 23-24 (2d
Cir. 1988), and the assignment of pro bona counsel in civil cases is within the trial
court's discretion. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The court
must evaluate "the merits of [the] plaintiff's case, the plaintiff's ability to pay for private
counsel, his efforts to obtain a lawyer, the availability 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., Inc., 877 F .2d 170, 172 (2d Cir. 1989). Particular attention must be paid to
the merits of the plaintiff's claim. Id. ("Even where the claim is not frivolous, counsel is
often unwarranted where the indigent' s chances of success are extremely slim." (quoting

Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986))).

This is because "every

assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer
lawyer available for a deserving cause." Id. Additionally, for prison inmates, the court
must also give weight to the plaintiff's lack of practical access to attorneys. Id. at 17374.
Plaintiff was in prison when he filed the complaint, and remains in custody.
Plaintiff has previously been granted leave to proceed informa pauperis. (Dkt. 3). In his

in forma pauper is motion, Plaintiff stated that he was incarcerated, had not worked in the
past 12 months, and did not have any cash or other assets. (Dkt. 2 at 1-2). A prison
official certified that Plaintiff's average account balance for the previous six months was
$50.02. (Id. at 2). Plaintiff has conclusively shown that he is indigent, and has met the

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threshold test for appointing counsel.
However, on balance, the Cooper factors weigh against appointing counsel. As
the Second Circuit has noted, "[t]he vast majority of litigation on behalf of personal
claimants is financed initially by lawyers who accept the representation for a contingent
fee in the expectation of being rewarded by a share of the winnings." Cooper, 877 F.2d
at 173. As noted in the Court's prior Decision and Order denying the appointment of
counsel, Plaintiff has been unsuccessful in his attempts to find counsel. (Dkt. 103 at 3).
However, this, in itself, is insufficient to warrant the appointment of counsel.
The Court finds that Plaintiff has not established that he has a likelihood of
success on the merits.

The claims presented revolve around a single use of force

incident. Plaintiff claims that during a cell extraction he was beaten and choked by the
Defendant correctional officers. (Dkt. 4 at 7-8). Plaintiff further claims that Defendant
Donald Holton, the correctional officers' supervisor, failed to properly supervise and
failed to intervene in his beating.

(Id. at 9).

The trial will turn on the jury's

determination as to the credibility of the witnesses, not any complex factual or legal
issues which Plaintiff is incapable of handling on his own.
Up to this point, Plaintiff has submitted a clear, well-drafted amended complaint
(see generally id.), and has drafted motion papers containing logical factual arguments in

support of his requests for relief.

(See, e.g., Dkt. 93; Dkt. 107).

In fact, Plaintiff

successfully defended against Defendants' repeated dispositive motions in this case. (See
Dkt. 64; Dkt. 74).
During an appearance on April 25, 2017, Plaintiff asserted, for the first time, that

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he had mental health issues which limited his ability to represent himself. (See Dkt. 102).
Plaintiff has submitted some evidence of mental health issues. (See Dkt. 107 at 7-11).
The evidence shows that Plaintiff suffers from depression and impulse control problems;
it does not show that Plaintiff is unable to represent himself at trial. The psychological
examiner noted that Plaintiff had no indication of neurological impairment, nor did he
show cognitive deficits. (Id. at 8). His stream of thought during the examination was
"logical and coherent."

(Id.).

The mental health issues appear related to Plaintiffs

sexual behavior issues-not issues concerning comprehension.

This suggests that

Plaintiff is capable of advocating on his own behalf at trial. Cf Medina v. Napoli, 554 F.
App'x 65, 66 (2d Cir. 2014) (finding the appointment of counsel necessary because of the
plaintiffs "struggles with psychiatric issues, ... blindness, and the apparent present
unavailability or ineffectiveness of certain accommodations previously made to assist
him in reviewing materials and presenting his case"). Additionally, the Court has held
two appearances with Plaintiff and has found Plaintiff able to succinctly and competently
articulate his thoughts in a manner which suggests that he is capable of presenting his
case to a jury without the assistance of counsel. See, e.g., Fowler v. Fischer, 13-CV6546-FPG-JWF, 2017 WL 1194377, at *3 (W.D.N.Y. Mar. 30, 2017) (denying
appointment of counsel where the "plaintiff appear[ ed] sufficiently knowledgeable and
equipped to understand and handle the litigation"); Castro v. Manhattan E. Suite Hotel,
279 F. Supp. 2d 356, 358 (S.D.N.Y. 2003) (denying appointment of counsel where "the
case [did] not present novel or overly complex legal issues, and there [was] no indication
that [the plaintiff] lack[ ed] the ability to present his case").

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Balancing the factors set forth in Cooper, the Court finds that appointing counsel
is inappropriate, and, therefore, Plaintiff's motion (Dkt. I 07) is denied. Should Plaintiff
seek to proceed to trial, he must represent himself.
SO ORDERED.

Dated: August 2, 2016
Rochester, New York

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