Medina v. Barrett et al

Filing 16

ORDER. Medina's request for appointment of counsel (ECF No. 8) is GRANTED. After counsel is appointed, the Court will issue a scheduling order setting forth the time in which Medina's counsel may respond to the partial summary judgment mot ion (ECF No. 9). Medina need not himself respond to the partial summary judgment motion. The Court hereby directs the Pro Se Litigation Unit to identify an attorney who is willing to represent Medina in this matter and to advise this Court when pro bono counsel has been identified. SO ORDERED. This Order has been mailed to Plaintiff at his address of record. Signed by Hon. Frank P. Geraci, Jr. on 3/30/2016. (BD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANTHONY MEDINA
Plaintiff,
DECISION AND ORDER
v.
Case # 14-CV-63 77-FPG

JASON J. BARRETT, et al.,
Defendants.

Before the Court is a motion to appoint counsel (ECF No. 8) filed by Plaintiff Anthony
Medina ("Medina") and a motion for partial summary judgment (ECF No. 9) filed by five of the
six defendants in this case.

BACKGROUND
Medina is a prisoner currently housed at Five Points Correctional Facility in Romulus,
New York. He brings this action pro se against five prison officials and the New York State
Department of Corrections and Community Supervision for problems arising out of his
incarceration at Wende Correctional Facility ("Wende") in Alden, New York. By Order dated
March 17, 2015, the Court granted Medina's request to proceed informa pauperis. ECF No. 5.
The precipitating event in this action is a physical altercation between Medina and
another inmate, during or after which Officer Barrett ("Barrett"), a corrections officer at Wende,
allegedly struck Medina in the head with a baton. ECF No. 1 at

'il'il

14-15. Medina asserts that

Barrett and Officer McKeel ("McKeel"), another Wende corrections officer, then filed false
reports about the incident, which resulted in Medina being placed in the Special Housing Unit

("SHU") at Wende. Id. at

~~

17-20. Barrett and McKeel also allegedly gave false testimony

about the incident during an ensuing disciplinary proceeding, which resulted in Medina
remaining in the SHU for sixty days. Id.

at~~

21-27, 36. While in the SHU, Medina alleges that

he was denied certain accommodations that-as an individual who is legally blind-he needed to
properly defend himself during the disciplinary proceeding and, more generally, he needs to
function from day to day. Id. at

~~

32-51. These accommodations include a closed circuit TV

magnifier, a computer with software for the sight-impaired, and documents printed with enlarged
font. Id. at ~ 37. Medina further alleges that as result of not receiving these accommodations, he
was not able to complete a form for medical care, and thus he was effectively denied medical
care. Id.

at~~

52-54.

Accordingly, Medina brings claims under 42 U.S.C. § 1983, Title II of the Americans
with Disabilities Act (42 U.S.C. §§ 12101-12132), and Section 504 of the Rehabilitation Act (29
U.S.C. § 794).

DISCUSSION
Medina has now filed a motion to appoint counsel. ECF No. 8. He contends that counsel
should be appointed here because he suffers from serious mental illness, scoliosis, osteoarthritis,
and cervical spine syndrome, all of which interfere with his ability to write. Id.

at~

2. He also

contends that he is legally blind and without access to accommodating devices, which interferes
with his ability to read and write.

Id. at

~

3. Notably, he also asserts that "in a case less

complicated than this one," the Second Circuit "agreed" that his legal blindness, mental illness,
and lack of access to accommodating devices warranted the appointment of counsel. Id. at

~

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(citing Medina v. Napoli, 554 F. App'x 65, 66 (2d Cir. 2014)).
It is well-settled that there is no constitutional right to counsel in civil cases. See In re

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Martin-Trigona, 73 7 F .2d 1254, 1260 (2d Cir. 1984). 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 appointment is within
the judge's broad discretion.

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

factors to be considered in deciding whether to appoint counsel include the following: (1)
"whether the indigent's position seems likely to be of substance;" (2) "the indigent's ability to
investigate the crucial facts;" (3) "whether conflicting evidence implicating the need for crossexamination will be the major proof presented to the fact finder;" (4) "the indigent' s ability to
present the case" and, relatedly, "the complexity of the legal issues;" and (5) "any special reason
in that case why appointment of counsel would be more likely to lead to a just determination."
Id. at 61-62.

The Court notes at the outset that Medina is very familiar with this type of action in
federal court.

Since 2003, he has initiated at least nine actions, including this one, in the

Northern, Southern, and Western and Districts of New York under at least one of the three
statutes cited above, that is, 42 U.S.C. § 1983, the Americans with Disabilities Act, and the
Rehabilitation Act.

Medina v. Buther, et al., 7:2015-cv-01955 (S.D.N.Y. March 12, 2015);

Medina v. Barrett, et al.; 6:14-cv-06377-FPG (W.D.N.Y. July 10, 2014); Medina v. New York
State Department of Corrections and Community Supervision, et al., 6:13-cv-06384 (W.D.N.Y.
July 26, 2013); Medina v. Fischer, No. 1:201 l-cv-00176 (S.D.N.Y. Jan. 4, 2011); Medina v.

Skowron, No. 1:2008-cv-00573 (W.D.N.Y. August 4, 2008); Medina v. Gonzalez, No. 1:2008cv-01520 (S.D.N.Y. Feb. 14, 2008); Medina v. Napoli, No. 1 :2007-cv-00497 (W.D.N.Y. July 30,
2007); Medina v. Hunt, et al., No. 9:2005-cv-01460 (N.D.N.Y. November 22, 2005); Medina v.

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New York State Dep't of Corr. Servs., No. 1:2003-cv-09249 (S.D.N.Y. November 21, 2003). 1 In
five of these cases, Medina sought or seeks accommodations for his legal blindness and, thus, he
specifically brought claims under all three statutes. Thus, based on the Court's brief review

o~

Medina's filings in these cases, it is apparent that Medina has built up an expe1iise in this area of
the law that rivals that of a lawyer. Stated simply, even given his disabilities, the Court does not
believe that Medina would have any difficulty investigating crucial facts or otherwise presenting
this case.
Medina is correct, however, that on a relatively recent appeal of one of these nine cases,

Medina v. Napoli, 2012 WL 5288713, the Second Circuit observed as follows:
Counsel for both [the government and Medina] stated at oral argument that, in
light of Medina's] continuing struggles with psychiatric issues, the further
deterioration of his vision to the point of blindness, and the apparent present
unavailability or ineffectiveness of certain accommodations previously made to
assist him in reviewing materials and presenting his case, the appointment of
counsel is now appropriate. We agree.

Medina v. Napoli, 554 F. App'x 65, 66 (2d Cir. 2014). In other words, after both sides agreed at
oral argument that Medina's disabilities warranted the appointment of counsel, the Second
Circuit also agreed that Medina's disabilities warranted such an appointment.

See id.

On

remand to the district court, Medina then renewed his motion to appoint counsel, and the district
court heeded the Second Circuit's direction and appointed counsel. See Medina v. Napoli, No.
07-CV-497-JTC, 2015 WL 5638101, at *1 (W.D.N.Y. Sept. 24, 2015).
This Court will similarly heed the Second Circuit's direction and find that as a result of
Medina's legal blindness and mental disabilities, appointment of counsel is justified here. The
Court notes with caution, however, that "every assignment of a volunteer lawyer to an

These citations refer only to docket numbers-as opposed to Westlaw, Lexis, or Federal
Reporter citations-as the Court not addressing a specific decision in each case.
The date in each citation is the date the action was initiated.
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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). Here, it must be observed that

Plaintiffs assertions that he is effectively unable to read or write and does not have reasonable
accommodations are somewhat belied by the fact that he has filed lucid, cogent complaints pro
se in four federal actions since 2009, when his vision apparently staiied seriously deteriorating.
Medina v. Buther, et al., 7:2015-cv-01955; Medina v. Barrett, et al.; 6:14-cv-06377; Medina v.
New York State Department of Corrections and Community Supervision, et al., 6:13-cv-06384;
Medina v. Fischer, No. 1:2011-cv-00176. Most recently, in March of2015, he filed a 50-page

typed complaint in the Southern District of New York against thi1ieen defendants under 42
U.S.C. § 1983, the Americans with Disabilities Act, and the Rehabilitation Act. Medina v.
Buther, et al., 7:2015-cv-01955.

The Court reminds Medina that it determines whether to

appoint a lawyer on a case-by-case basis, and the appointment of a lawyer in this case is not an
indication that a lawyer will be appointed in any subsequent case.
CONCLUSION
In sum, Medina's request for appointment of counsel (ECF No. 8) is GRANTED. After
counsel is appointed, the Court will issue a scheduling order setting forth the time in which
Medina's counsel may respond to the partial summary judgment motion (ECF No. 9). Medina
need not himself respond to the partial summary judgment motion.
The Court hereby directs the Pro Se Litigation Unit to identify an attorney who is willing
to represent Medina in this matter and to advise this Comi when pro bona counsel has been
identified.

IT IS SO ORDERED.

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DATED:

March 30, 2016
Rochester, New York

NK P. GERACI, JR.
Chief Judge
United States District Court

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