Houston v. Sheahan et al
DECISION AND ORDER: Defendants' Motion for judgment on the pleadings (ECF No. 88) is GRANTED, and Plaintiff's Motions for the Appointment of Counsel and for Sanctions (ECF Nos. 94, 95) are DENIED. The sole remaining cause of action in this case is Plaintiff's claim of deliberate indifference to his serious dental conditions, and the sole remaining Defendant in that cause of action is Dr. Mewar. All other causes of action and other named Defendants are dismissed with prejudice. By separate order, this case will be referred to a United States Magistrate Judge for the supervision of all pretrial matters on the remaining cause of action. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 8/9/17. A copy of the Decision and Order and NEF have been mailed to the pro se Plaintiff. (SCE)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
MICHAEL SHEAHAN, et al.,
Pro se Plaintiff Tyrone Houston (“Plaintiff”), an inmate confined at the Five Points
Correctional Facility, brought this action seeking relief pursuant to 42 U.S.C. § 1983 (“§ 1983”)
based upon numerous alleged violations of his civil rights during his confinement at this facility.
ECF No. 1. Before the Court is Defendants’ motion for judgment on the pleadings regarding a
number of Plaintiff’s claims pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
ECF No. 88. For the reasons that follow, Defendants’ Motion for judgment on the pleadings is
In his Complaint (ECF No. 1), Plaintiff asserts the following causes of action against
Defendants: (1) the unconstitutional alteration of his concurrent sentences in violation of the
state court’s order; (2) deliberate indifference to his dental needs; (3) deliberate indifference to
his medical needs with respect to his foot condition, including cancelling his bunionectomy; (4)
the malicious alteration of Plaintiff’s legal, vocational, educational, transfer, medical, and dental
files; and (5) implementing unconstitutional grievance proceeding policies. Plaintiff is seeking a
monetary award and injunctive relief.
In their Rule 12(c) Motion, Defendants argue that: (1) Plaintiff’s first cause of action
concerning the length of his sentence is barred by Heck v. Humphrey, 512 U.S. 477 (1994); (2)
the second cause of action concerning his dental care should be dismissed for lack of personal
involvement as to all Defendants apart from his dentist, Dr. Mewar; (3) the third cause of action
concerning his bunion treatment should be dismissed for failure to allege a serious condition
and/or lack of personal involvement; (4) the fourth cause of action for inaccurate prison records
should be dismissed because Plaintiff does not have a constitutional right to accurate records;
and (5) the fifth cause of action for the implementation of prison policies that encourage false or
falsely over-charged misbehavior reports and the improper weighing of corrections officers’
credibility during disciplinary proceedings against inmates should be dismissed because inmates
do not have the constitutional right to be free from false reports and due process requires only
“some evidence” of a violation. Plaintiff opposes the motion. See ECF Nos. 90, 93.
Standard of Review
The standard of review for a motion for judgment on the pleadings under Rule 12(c) is
the same as that which governs a motion to dismiss a complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. The Complaint must plead facts sufficient “to state a claim for
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
“The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. Thus, “[w]here a complaint pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id.
Determining whether a complaint meets the plausibility standard is “context-specific” and
requires that the court “draw on its judicial experience and common sense.” Id. at 679. “On a
12(c) motion, the court considers the complaint, the answer, any written documents attached to
them, and any matter of which the court can take judicial notice for the factual background of the
case.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011).
Alleged Sentence Alternation (First Cause of Action)
Plaintiff’s first cause of action appears to allege that certain Defendants violated parole
and court orders concerning his concurrent sentence. First, it is unclear from the Complaint how
Plaintiff’s sentence was altered, the circumstances under which it occurred, or whether any of
these Defendants were personally involved in any unconstitutional conduct related thereto.
Second, the United States Supreme Court has limited the scope of cognizable Section 1983
claims to claims that would not “necessarily imply the invalidity of his conviction or sentence”
unless the prisoner could show that conviction or sentence had already been invalidated. Heck v.
Humphrey, 512 U.S. 477, 487 (1994). Inasmuch as Plaintiff’s challenge to his sentence is
particularly unartful and ill-defined in his pleadings, it is not immediately clear whether this
claim is barred by Heck, which extends to parole violation and revocation sentence
determinations. See Preiser v. Rodriguez, 411 U.S. 475, 487–90, 500 (1973). However, because
there is no allegation or indication that Plaintiff’s sentence has been invalidated, the claim cannot
proceed and this cause of action is therefore dismissed.
Deliberate Indifference to Serious Medical Needs
A claim for denial of medical care rises to the level of a constitutional violation only
where the facts alleged show that a defendant was deliberately indifferent to a plaintiff’s serious
medical needs. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Ross v. Kelly, 784 F. Supp.
35, 43-44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir. 1992). This standard has both an objective
and subjective component. Plaintiff’s medical needs must be objectively serious. “A serious
medical condition exists where ‘the failure to treat a prisoner’s condition could result in further
significant injury or the unnecessary and wanton infliction of pain.’ ” Harrison v. Barkley, 219
F.3d 132, 136-137 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998) (finding a serious dental condition where plaintiff alleged that he suffered extreme pain,
deteriorated teeth, and the inability to eat properly). Plaintiff must also address the subjective
component – that the prison officials were deliberately indifferent to a serious medical need. To
address this, Plaintiff must adequately allege that the prison official had actual knowledge of
plaintiff's serious medical needs, but was deliberately indifferent to that need. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994); Brock v. Wright, 315 F.3d 158 (2d Cir. 2003).
Dental Condition (Second Cause of Action)
Plaintiff alleges that he suffered severe tooth pain, holes in his teeth, a broken tooth, and
the inability to eat properly. He further alleges that he received no dental or medical treatments
until he was examined by Dr. Mewar five months after his admission to the prison. Plaintiff
states that Dr. Mewar told him at the time, “I’m not fixing multiple cavities today. It’s Friday
and I’m leaving early. You should have had it done when you were home. Get out. I’ll call you
later.” ECF No. 1 at 10. When Plaintiff was called back to see Dr. Mewar two months later, Dr.
Mewar attempted to remove five teeth, including Plaintiff’s broken tooth and four other teeth
that were “solid” and causing him “no pain.” ECF No. 1 at 11. Defendants Bailey and Schmelzle
were present during this procedure. Plaintiff alleges that Dr. Mewar refused to fill his cavities
unless he consented to the unnecessary removal of the five teeth and that Dr. Mewar
subsequently filed a Tier II misbehavior report against Plaintiff.
Plaintiff also alleges that he was sent to Dr. Mewar a year later, in 2013, with an
abscessed and broken tooth, which Dr. Mewar attempted to remove without offering medication
for Plaintiff’s pain and swelling. Plaintiff signed a refusal “form with reasons for not allowing
defendant Mewar to extract additional teeth, in order to be provided Dental Treatment from an
Oral Surgeon.” ECF No. 1 at 12. Plaintiff alleges that he was then placed in keeplock in
retaliation for “exercising his rights” by Defendants Canty, Bailey, Babcock, and O’Connor.
ECF No. 1 at 12. Plaintiff asserts that although he was falsely documented as refusing treatment
in January, May, and August 2013, he had merely refused the extraction of five additional teeth.
Plaintiff also brings this claim against supervisory Defendants Fischer, Bellamy, Koenigsman,
Sheahan, Thoms, Bannister, Hartman, Daleck, and Haimes for their alleged failure to remedy
this wrongful conduct, their design and implementation of an unconstitutional policy, and their
negligent supervision and failure to train. Defendants do not dispute that Plaintiff was suffering
from a serious dental condition, but they assert that this claim should be dismissed for lack of
personal involvement as to all Defendants, apart from Dr. Mewar, and that these Defendants
were entitled to rely on Dr. Mewar’s expertise.
It is well settled that personal involvement by the defendants accused of the constitutional
deprivation is a prerequisite for liability under § 1983. See Sealey v. Giltner, 116 F.3d 47, 51 (2d
Cir. 1997). Such involvement on the part of a supervisory official may be shown in one of
(1) actual direct participation in the constitutional violation, (2) failure to remedy
a wrong after being informed through a report or appeal, (3) creation of a policy
or custom that sanctioned conduct amounting to a constitutional violation, or
allowing such a policy or custom to continue, (4) grossly negligent supervision of
subordinates who committed a violation, or (5) failure to act on information
indicating that unconstitutional acts were occurring.
Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (quoting Hernandez v. Keane, 341 F.3d
137, 145 (2d Cir.2003) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). “[M]ere
‘linkage in the prison chain of command’ is insufficient to implicate a state commissioner of
corrections or a prison superintendent in a § 1983 claim.” Richardson, 347 F.3d at 435 (quoting
Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)); see also Keitt v. N.Y. City, 882 F. Supp. 2d
412, 444 (S.D.N.Y. 2011) (holding that “the fact that an official holds a supervisory position is,
standing alone, insufficient to establish that official's liability for the acts of his subordinates”).
Moreover, it is “well accepted in this Circuit that in general, supervisory prison officials
may not be found liable for constitutional violations involving medical care where they
reasonably relied on the opinions of prison medical staff.” Rodriguez v. McGinnis, No. 98-CV6031CJS, 2004 WL 1145911, at *18 (W.D.N.Y. May 18, 2004) (citing Graham v. Wright, No.
01 Civ. 9613 NRB, 2003 WL 22126764 at *1 (S.D.N.Y. Sep. 12, 2003) (“It is well established
that supervisory officials are “generally entitled to delegate medical responsibility to facility
medical staffs and are entitled to rely on the opinion of medical staff concerning the proper
course of treatment.”); see Abdush–Shahid v. Coughlin, 933 F.Supp. 168, 183 (N.D.N.Y. 1996)
(“[S]upervisory officials are also generally entitled to delegate medical responsibility to facility
medical staffs and are entitled to rely on the opinion of medical staff concerning the proper
course of treatment.”)
With respect to the named Defendants other than Dr. Mewar, the Court finds that Plaintiff
has failed to allege any facts to indicate that these Defendants were personally involved in his
dental care or had any input in the medical decisions related to his dental treatment. These
Defendants were entitled to rely on Dr. Mewar’s dental opinion, and there are no allegations that
they were aware of and disregarded an excessive risk to Plaintiff’s health or safety. Therefore,
the claim is dismissed against all named Defendants, with the exception of Dr. Mewar.
With respect to Defendant Dr. Mewar, Plaintiff alleges that Dr. Mewar maliciously
delayed the performance of Plaintiff’s necessary dental work and attempted to coerce him into
the painful removal of healthy teeth. In the fourth cause of action, Plaintiff makes a vague and
conclusory allegation that Dr. Mewar maliciously altered his dental records. ECF No. 1 at 23, ¶
43. Plaintiff acknowledges that he refused treatment for these reasons and because he desired to
be treated by an outside and unbiased oral surgeon. Defendants, however, have not moved to
dismiss Plaintiff’s dental care claims against Dr. Mewar, and, therefore, Plaintiff’s deliberate
indifference to dental condition claim against Dr. Mewar will proceed.
Foot Condition (Third Cause of Action)
Plaintiff alleges that he was examined by a “NYC DOC Podiatrist” in May 2010 who
recommended that he be seen by an outside podiatrist because his prison-issued footwear was
causing “gout, swelling, bunions and painful corns.” ECF No. 1 at 16. Plaintiff was also issued a
medical pass permitting him to wear work boots until he could be “examine[d] for orthopedic
shoes and operation” to relieve his symptoms, including pain and difficulty walking and
standing. ECF No. 1 at 16. In 2011, Plaintiff was issued a pass permitting him to wear sneakers,
and he was recommended for treatment by an outside podiatrist. He was again recommended for
outside treatment in 2013 and transported to the Elmira Correctional Facility where he was
examined by Dr. Hater, who “informed Plaintiff of the dangers in having ‘bunionactomy
surgery’ with gout and arthritis” and the long healing period after surgery. ECF No. 1 at 16.
Plaintiff brings a claim of deliberate indifference to his foot condition against Defendants
Holm, Haimes, O’Neal, Daleck, and Sheahan “for deliberately disregarding [his] foot injuries
[and] altering his 3/18/13 medical record to state that Plaintiff did not need to see an outside
Podiatrist.” ECF No. 1 at 17 (emphasis in original).
Plaintiff further alleges that Defendants
Yott, Gardner, and Hernandez fabricated a refusal form stating that Plaintiff had refused foot
surgery from an outside medical provider and placed Plaintiff in keeplock in retaliation “for
exercising his right to attend his mandatory Law Library Special Access” in August 2015. ECF
No. 1 at 17. Plaintiff also brings this claim against supervisory Defendants Fischer, Bellamy,
Koenigsman, Sheahan, and Daleck for their failure to remedy this wrong, the design and
implementation of the policy underlying the unconstitutional conduct, and their negligent
supervision of Haimes, Yott, Gardner, and Hernandez.
Although Defendants initially state that they are not moving to dismiss this claim against
Defendant Haimes, they assert in the alternative that this claim should be dismissed in its entirety
because Plaintiff’s bunion condition did not constitute a serious medical condition. The Court
agrees. Even accepting as true Plaintiff’s allegations that he experienced extreme swelling,
painful corns, and difficulty walking and standing, his complaints concerning his foot injuries do
not demonstrate the requisite urgency leading to death, degeneration or extreme pain. Indeed,
“the case law holds that prisoner complaints about bunions or other foot problems do not
establish the objective prong of the deliberate indifference standard.” Brown v. DeFrank, No. 06
CIV 2235 AJP, 2006 WL 3313821, at *21 (S.D.N.Y. Nov. 15, 2006) (holding that prisoner’s
claims that defendants unreasonably delayed referral for needed podiatry services; intentionally
cancelled and unreasonably delayed his bunion surgery; and intentionally denied him a referral
for prescription footwear did not state a deliberate indifference claim). It has been repeatedly
held that such conditions do not constitute a serious medical condition in the context of
deliberate indifference to medical need claims, including the refusal to provide high performance
footwear to an inmate with chronic ankle arthritis, see Alston v. Howard, 925 F. Supp. 1034,
1040 (S.D.N.Y. 1996), and a failure to prescribe orthopedic shoes and dressing feet too tightly
after bunion surgery, see Cole v. Scully, No. 93 CIV. 2066 (LAP), 1995 WL 231250, at *6
(S.D.N.Y. Apr. 18, 1995).
Moreover, “disagreement over or delays in treatment do not create a constitutional
claim.” Brown, No. 06 CIV 2235 AJP, 2006 WL 3313821, at *21. Consequently, Plaintiff’s
deliberate indifference claims relating to his bunions are dismissed in their entirety as to all
Alterations to Prison Record (Fourth Cause of Action)
Plaintiff asserts that a number of Defendants have made malicious and false alterations to
his prison record, including his medical, dental, educational, sentence, transfer, and disciplinary
Defendants contend that this claim should be dismissed for the lack of personal
involvement by Defendants, and further, because prisoners do not have a constitutional right to
In Paine v. Baker, 595 F.2d 197, 201 (4th Cir. 1979), the Fourth Circuit found that a
prison inmate may have a limited constitutional protection under the Due Process Clause from
false information concerning his prior criminal history or disciplinary record in his file. To
sustain such a claim, a plaintiff must establish: (1) the existence of false information regarding
his prior criminal or disciplinary history; (2) a probability that the information will be relied on
in a constitutionally significant manner; and (3) that, as a jurisdictional predicate, he requested
that the false information be expunged, but prison officials declined to do so. See Foster v. New
York City Prob. Dep't, No. 11-CV-4732 KAM JMA, 2013 WL 1342259, at *4 (E.D.N.Y. Mar. 7,
2013), report and recommendation adopted, No. 11-CV-4732 KAM JMA, 2013 WL 1305775
(E.D.N.Y. Mar. 30, 2013) (citing Paine, 595 F.2d at 201 and Antonucci v. David, No.
9:03CV653(FJS/DEP), 2006 WL 2265028, at *4 (N.D.N.Y. Aug. 7, 2006)).
Here, Plaintiff has failed to establish that any falsifications in his prison files were or
would be relied upon in an unconstitutionally significant manner. See e.g., Pugliese v. Nelson,
617 F.2d 916 (2d Cir. 1980) (holding prisoners’ interests in avoiding classifications which
precluded or delayed benefits such as furloughs and transfers did not entitle them to due process
protection). Plaintiff’s conclusory assertions that he was deprived of access to certain prison
privileges or freedoms as a result of altered records are unavailing and fail to implicate any
unconstitutional significance. “[A] prisoner's mere expectation of benefits . . . does not amount
to a statutory or constitutional entitlement sufficient to trigger due process protections.” Id. at
925 (“We have rejected the notion that every state action carrying adverse consequences for
prison inmates automatically activates a due process right.”)
To the extent that Plaintiff is challenging the alleged filing of false misbehavior reports in
his prison records, it is well settled that “a prison inmate has no general constitutional right to be
free from being falsely accused in a misbehavior report” absent any additional factors, “such as
retaliation against the prisoner for exercising a constitutional right.” Boddie v. Schnieder, 105
F.3d 857, 862 (2d Cir. 1997); see also Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)
(“The prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly
accused of conduct which may result in the deprivation of a protected liberty interest”). No
specific retaliation allegations exist here regarding misbehavior reports, as discussed further in
Section E of this Order.
As a result, Plaintiff’s claims concerning the alteration of his prison records are dismissed
as to all Defendants for failure to state a claim upon which relief could be granted.
Denial of the Right to Access the Courts
Plaintiff appears to allege violations of his right to access the courts based on Defendants’
destruction of his legal documents, including his trial minutes and medical records, and denying
or discouraging Plaintiff from visiting the law library and using his “Law Library Special
Access” privileges. ECF No. 1 at 17, 22, 23. Defendants have not specifically addressed these
allegations in their motion. However, under 28 U.S.C. § 1915A, the court may dismiss sua
sponte any claim in which a prisoner seeks redress from a governmental entity, or officer or
employee of a governmental entity, that is “frivolous, malicious, or fails to state a claim upon
which relief may be granted; or seeks monetary relief from a defendant who is immune from
A denial of access to the courts claim must contain non-conclusory allegations
demonstrating that: (1) Defendants acted deliberately and maliciously and (2) he suffered an
actual injury. Burroughs v. Petrone, 138 F. Supp. 3d 182, 210 (N.D.N.Y. 2015) (citing Lewis v.
Casey, 518 U.S. 343, 353 (1996)). Moreover, a plaintiff must show that the actual injury
suffered is traceable to the challenged conduct of prison officials. Actual injury is not shown
unless Plaintiff establishes that a “nonfrivolous legal claim had been frustrated or was being
impeded” due to the actions of prison officials. Lewis, 518 U.S. at 351-52. In other words, the
pleadings must allege how the destruction of his legal documents prejudiced his “ability to seek
redress from the judicial system.” Smith v. O’Connor, 901 F. Supp. 644, 649 (S.D.N.Y. 1995).
The Court finds that Plaintiff has failed to allege any actual injury suffered by challenged
conduct, and his denial of access to the courts claims, to the extent that they have been alleged,
are therefore dismissed as to all Defendants.
Retaliation and unwritten policies claims (Fifth Cause of Action)
To the extent that Plaintiff has interspersed retaliation claims throughout the Complaint,
it is well settled that such claims cannot be stated “in wholly conclusory terms” but must instead
contain factual allegations that are “specific and detailed.” Friedl v. City of New York, 210 F.3d
79, 86 (2d Cir. 2000) (internal quotation marks omitted); see also Graham v. Henderson, 89 F.3d
75, 79 (2d Cir. 1996) (“A complaint of retaliation that is wholly conclusory can be dismissed on
the pleadings alone.”); Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987). Further, a retaliation
claim must contain the following factual allegations: “(1) that the speech or conduct at issue was
protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a
causal connection between the protected speech and the adverse action.” Gill v. Pidlypchak, 389
F.3d 379, 380 (2d Cir. 2004) (internal quotation marks omitted).
In each cause of action, Plaintiff accuses Defendants of perpetrating the alleged
constitutional violation in retaliation for his filing of grievances. Each allegation, however, is
stated in wholly conclusory terms or fails to assert a causal connection between the protected
speech and the alleged adverse action, or both. Consequently, Plaintiff’s retaliations claims are
dismissed as to all Defendants.
Plaintiff’s final cause of action also alleges that Defendants Fischer and Sheahan
implemented unconstitutional prison policies that encourage false or falsely over-charged
misbehavior reports, the improper weighing of corrections officers’ credibility during
disciplinary proceedings, and overcharging disciplinary infractions in order to assess a $5.00
surcharge for Tier II and Tier III-level findings of guilt. The Court agrees with Defendants that,
as stated above, Plaintiff has not alleged circumstances giving rise to a constitutionally
guaranteed immunity from false misbehavior reports. With respect to the $5.00 surcharge, the
Second Circuit has held that “any incentive to find an inmate guilty or to upgrade the violation
that might result from the surcharge is too remote and attenuated to deprive the inmates of due
process.” Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (finding “no showing that a single
hearing officer was under the impression there would be any personal gain from charging or
convicting an inmate of a Tier II or III violation.”).
With respect to the weighing of witness credibility during disciplinary hearings, an
inmate is certainly entitled to have the hearing conducted by an impartial hearing officer. See,
e.g., Wolff v. McDonnell, 418 U.S. 539, 570-71 (1974); Patterson v. Coughlin, 905 F.2d 564,
569-70 (2d Cir. 1990) (“an impartial decisionmaker is one who, inter alia, does not prejudge the
evidence and who cannot say . . . how he would assess evidence he has not yet seen”). However,
Plaintiff’s claim is wholly conclusory and devoid of any factual allegations to suggest any
partiality by the prison hearing officers. Judicial review of written prison disciplinary findings
under the Due Process Clause is limited to determining whether the disposition is supported by
“some evidence.” Whitley v. Miller, 57 F. Supp. 3d 152, 158 (N.D.N.Y. 2014) (quoting Sira v.
Morton, 380 F.3d 57, 69 (2d Cir. 2004)) (internal quotation marks omitted). Here, Plaintiff
makes only general allegations concerning the prison’s procedure of adjudicating disciplinary
charges and states no facts to support his claim that the hearing officers’ credibility assessments
are unreliable or their determinations are otherwise unsupported by some evidence.
Consequently, Plaintiff’s fifth cause of action is dismissed in its entirety.
Plaintiff’s Motion for Counsel and Sanctions
Plaintiff seeks sanctions against Defendants’ attorney, Assistant Attorney General Gary
Levine, based on his allegation that Defendants’ Motion for Judgment on the Pleadings is
nothing more than a delaying tactic ECF No. 95. Since the Court has granted Defendants’
Motion for Judgment on the Pleadings, Plaintiff’s motion for sanctions is meritless, and is denied
in all respects.
Plaintiff also seeks the appointment of counsel. ECF No. 94. That application is also
denied. There is no constitutional right to appointed counsel in civil cases. Under 28 U.S.C. §
1915(e), the Court may appoint counsel to assist indigent litigants. See, e.g., Sears, Roebuck &
Co. v. Charles Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). The assignment of
counsel in civil cases is within the trial Court’s discretion. In re Martin-Trigona, 737 F.2d 1254
(2d Cir. 1984). The Court must consider the issue of appointment carefully, because “every
assignment of a volunteer lawyer deprives society of a volunteer lawyer available for a deserving
cause.” Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). In determining whether to
assign counsel, the Court considers several factors, including whether the indigent’s claims seem
likely to be of substance; whether the indigent is able to investigate the facts concerning his
claim; whether the legal issues are complex; and whether there are special reasons why the
appointment of counsel would be more likely to lead to a just determination. See Hendricks v.
Coughlin, 114 F.3 390, 392 (2d Cir. 1997); Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986).
The appointment of counsel is not warranted in this case. The remaining claim in this
case is not complex, and from reading Plainitff’s submissions, he is articulate and has
demonstrated the ability to adequately present his own claims. In addition, there are no special
reasons that would favor the ap
ppointment of counsel. It remains Plaintiff’s responsibili to
either ret counsel, or to press forward with this action pro se.
Defendants’ Motion for judgment on the plead
dings (ECF No. 88) is GRANTED, and
Plaintiff’s Motions for the Appo
ointment of Counsel an for Sanct
tions (ECF Nos. 94, 95 are
DENIED The sole remaining cause of action in this case is Pl
aim of delib
indifferen to his se
erious denta conditions and the so remaining Defendant in that cau of
action is Dr. Mewar. All other causes of act
tion and oth named Defendants ar dismissed with
By separate order, this case will be referred to a United Sta Magistr
rate Judge fo the
supervisi of all pre
etrial matters on the rema
aining cause of action.
IT IS SO ORD
Augus 9, 2017
ester, New York
HON. FRAN P. GER
United State District C
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