Irving v. Philips et al

Filing 45

DECISION AND ORDER. Defendant Philips and Tryon's Motion for Summary Judgment 29 is DENIED WITHOUT PREJUDICE, Plaintiff's Motion to Appoint Counsel 36 is DENIED WITHOUT PREJUDICE, and Plaintiff's Motions for Preliminary Injunctions [37, 41] are DENIED AS MOOT. Further, Plaintiff is ORDERED to file with the Court a copy of the written consent of the United States Attorney General or her designee for Plaintiff to reapply for admission into the United States. If a copy of such w ritten consent is not filed on or before April 14, 2017, this action will be dismissed for Plaintiff's inability to prosecute this case. SO ORDERED. A copy of this Order and NEF have been mailed to the pro se Plaintiff. Signed by Hon. Frank P. Geraci, Jr. on 1/10/2017. (AFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LESTER PAUL IRVING,
Plaintiff,
Case # 15-CV-6413-FPG
v.
DECISION AND ORDER
MICHAEL PHILIPS, TODD TRYON,
& CHERYL KRAFT,
Defendants.

INTRODUCTION
Pro se Plaintiff Lester Paul Irving (“Plaintiff”) brings this action against Michael Philips,
Bureau of Immigration and Customs Field Officer Director for Detention and Removal, Todd
Tryon, Buffalo Federal Detention Facility (“BFDF”) Director, and Cheryl Kraft, a nurse at the
BFDF. ECF No. 5. Plaintiff alleges that on May 11, 2015, he ruptured his Achilles tendon while
playing basketball at the BFDF. Id. at 2. Plaintiff asserts that Defendants Philips and Tryon
acted with deliberate indifference because they “knew and/or should have known” that the
condition of the basketball court was unsafe and was causing injuries to detainees. Id. at 2.
Plaintiff also alleges that Defendant Kraft was deliberately indifferent to his medical needs after
he injured his Achilles tendon. Id. at 3.
On January 14, 2016, Defendants Philips and Tryon filed a Motion to Dismiss that
alternatively requested that the Court grant summary judgment. ECF No. 16. On February 19,
2016, Defendants Philips and Tryon moved to withdraw their motion (ECF No. 24), and the
Court granted that relief via text order on May 25, 2016 (ECF No. 27). That same day,
Defendants Philips and Tryon filed an Answer (ECF No. 28) to Plaintiff’s Amended Complaint

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and simultaneously moved for summary judgment (ECF Nos. 29-34). On June 3, 2016, Plaintiff
responded in opposition and moved to appoint counsel. ECF No. 36. Plaintiff has also filed two
motions for preliminary injunctions wherein he requests that he not be deported from the United
States while this action is pending. ECF Nos. 37, 41.
DISCUSSION
I.

Motion for Summary Judgment
Immediately after answering Plaintiff’s Amended Complaint, Defendants Philips and

Tryon moved for summary judgment. ECF Nos. 28-34. Although a motion for summary
judgment may be filed “at any time until 30 days after the close of all discovery,” Fed. R. Civ. P.
56(b), summary judgment is generally not appropriate until after some discovery has occurred.
Nelson v. Deming, No. 6:13-CV-06252 EAW, 2015 WL 6452386, at *5 (W.D.N.Y. Sept. 30,
2015). In Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), the Supreme Court explained that
the purpose of summary judgment is to allow for the disposition of a case “after adequate time
for discovery” has elapsed. Id. Indeed, “[o]nly in the rarest of cases may summary judgment be
granted against a plaintiff who has not been afforded the opportunity to conduct discovery.”
Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000).
In those rare cases where summary judgment is appropriate even though no discovery has
occurred, it is evident from the face of the complaint that discovery would be futile. See Nelson,
2015 WL 6452386, at *5 (addressing defendants’ pre-discovery motion for summary judgment
because “[t]he facts contained in the attachments to [p]laintiff’s own complaint contradict his
claim for deliberate medical indifference”); Parra v. Wright, No. 11-CV-6270 CJS, 2013 WL
6669235, at *7 (W.D.N.Y. Dec. 18, 2013) (denying the bulk of defendants’ motion for summary
judgment because no discovery had taken place, but addressing an argument regarding plaintiff’s

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failure to exhaust administrative remedies because “the facts regarding [p]laintiff’s efforts at
exhaustion are not disputed, and it does not appear that any amount of discovery would change
the outcome of that portion of the application”).
Here, Defendants Philips and Tryon’s summary judgment motion was filed before any
discovery occurred. ECF Nos. 29-34. In the motion, Defendants do not explain why or argue
that this is one of “the rarest of cases” where summary judgment may be granted prior to
discovery. Hellstrom, 201 F.3d at 97. On the contrary, Defendants’ motion simply argues their
version of the facts, and it “appears to be an attempt to nullify the well-pleaded factual
allegations in Plaintiff’s Complaint after conducting one-sided discovery.” Fowler v. Fischer,
No. 13-CV-6546-FPG, 2016 U.S. Dist. LEXIS 16278, at *4 (W.D.N.Y. Feb. 10, 2016). In
opposition, Plaintiff argues that the Court should refrain from deciding the summary judgment
motion because he is entitled to “ample time to complete discovery.” ECF No. 36, at 7. In reply,
Defendants Philips and Tryon contend that Plaintiff’s argument fails because he did not set forth
the required elements of a motion to defer summary judgment pursuant to Federal Rule of Civil
Procedure 56(d). ECF No. 42, at 3-4; see Fed. R. Civ. P. 56(d) (stating that the court may defer
consideration of a summary judgment motion if the non-movant shows by affidavit or
declaration that he or she cannot present facts essential to justify its opposition). As explained
above, however, Defendants Philips and Tryon’s Motion for Summary Judgment is simply too
early as no discovery has occurred in this case.
Accordingly, because Defendants Philips and Tryon’s motion relies on their version of
the facts and improperly seeks summary judgment before discovery, it is DENIED WITHOUT
PREJUDICE.1

Faust v. Jun, No. 6:14-CV-6702, 2016 U.S. Dist. LEXIS 15444, at *4

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It is important to note that while the Court has discretion to allow Defendants Philips and Tryon a second
bite at the apple, it is not obligated to do so. Robinson v. Henschel, No. 10 CIV. 6212 PGG, 2014 WL 1257287, at

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(W.D.N.Y. Feb. 9, 2016); Trebor Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d
Cir. 1989) (“The nonmoving party should not be ‘railroaded’ into his offer of proof in opposition
to summary judgment.”) (citing Celotex, 477 U.S. at 326) (quotations in original).
II.

Motion to Appoint Counsel
In his opposition papers, Plaintiff requests that the Court appoint counsel because he

would “encounter great difficulty in presenting this civil case alone” and would be unable “to
effectively pursue discovery” and “adequately present his claims.” ECF No. 36, at 12-14.
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).

*9 (S.D.N.Y. Mar. 26, 2014) (denying defendants’ successive motion for summary judgment on exhaustion grounds
as “procedurally improper”); Siemens Westinghouse Power Corp. v. Dick Corp., 219 F.R.D. 552, 554 (S.D.N.Y.
2004); Essex Ins. Co. v. Foley, 827 F. Supp. 2d 1326, 1329 (S.D. Ala. 2011) (noting that “no federal litigant has an
absolute right to bring multiple, piecemeal motions for summary judgment” and emphasizing the importance of not
allowing parties to “treat their initial summary judgment motions as a ‘dry run’ which they would have an
opportunity to redo or supplement—at considerable additional cost to opposing parties and at a considerable drain to
scarce judicial resources”).

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After considering these factors, the Court finds that the appointment of counsel is not
warranted. The deliberate indifference claims in this case arise from a single incident and are not
complex.

Plaintiff’s submissions are well written, and he appears articulate and able to

adequately present his own claims. Additionally, there are no special reasons that would favor
the appointment of counsel at this time. Accordingly, Plaintiff’s Motion to Appoint Counsel
(ECF No. 36) is DENIED WITHOUT PREJUDICE. It is Plaintiff’s responsibility to either
retain counsel or to continue with this action pro se.
III.

Motions for Preliminary Injunctions
Plaintiff has filed two Motions for Preliminary Injunctions (ECF Nos. 37, 41) wherein he

requests that he not be deported from the United States while this action is pending. ECF Nos.
37, 41. The Court takes judicial notice, however, of documents filed in Plaintiff’s Habeas
Corpus matter before District Judge Lawrence J. Vilardo, which demonstrate that Plaintiff was
the subject of a Warrant of Removal/Deportation and was removed from the United States by the
Department of Homeland Security on June 30, 2016. See Docket No. 15-CV-824-LJV, ECF No.
19. As a result of his Removal/Deportation, Plaintiff is not legally permitted to be present in the
United States and currently resides in Jamaica. Thus, Plaintiff’s motions to prevent his imminent
deportation are moot since he has already been deported. See Lynch v. I.N.S., No. 92 Civ.
7436(JSM), 1993 WL 37509, at *2 (S.D.N.Y. Feb. 10, 1993).
On July 22, 2016, the Clerk of Court received a letter from Plaintiff indicating that he
was removed from the country to Jamaica. ECF No. 44. In that letter, Plaintiff requests that
Derrick F. Irving be “authorized . . . to act on [his] behalf as Plaintiff.” Id. at 1. As far as the
Court is aware, Derrick F. Irving is not an attorney and therefore he may not act on Plaintiff’s
behalf in this case. Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010) (“A person who has not

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been admitted to the practice of law may not represent anybody other than himself . . . This rule
exists to serve not only the interests of the represented party but also the interests of the
adversaries and the court, because the entire judicial system benefits from the professional
knowledge of practicing attorneys.”) (citations and internal quotation marks omitted).
Ultimately, Plaintiff will be required to physically appear before the Court for any
potential trial so he can present his claims and provide testimony in support of his claims. If he
failed to appear at such a trial, the action would have to be dismissed even if Plaintiff’s nonappearance was the result of his deportation. Further, since Plaintiff has been deported or
removed from the United States, if he were to re-enter the United States without the prior express
written permission of the United States Attorney General, Plaintiff would be committing a felony
offense under United States law. See 8 U.S.C. § 1326(a). As such, due to his deportation, it
appears unlikely that Plaintiff could ever appear before the Court to present his claims.
However, the Court is mindful that re-entry of a previously deported alien can be
permitted, if “the Attorney General has expressly consented to such alien’s reapplying for
admission.” See 8 U.S.C. § 1326(a)(2). Under this statute, a procedure exists for a deported
alien such as Plaintiff to be lawfully readmitted to the United States, and the discretion to grant
such re-entry is committed to the Executive Branch. Because the law affords Plaintiff a means
of obtaining lawful re-entry into the United States to appear in person for a trial of this case, the
Court will provide Plaintiff with the opportunity to obtain such lawful re-admission to the United
States before dismissing his case.
Accordingly, Plaintiff is ORDERED to file with the Court a copy of the written consent
of the United States Attorney General or her designee for Plaintiff to reapply for admission into
the United States. If a copy of such written consent is not filed on or before April 14, 2017, this

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action will be dismissed for Plaintiff’s inability to prosecute this case. See, e.g., Kuar v. Mawn,
No. 08-CV-4401 JFB ETB, 2012 WL 3808620, at *6 (E.D.N.Y. Sept. 4, 2012) (“The Court
concludes that, where there is no reasonable possibility that a pro se plaintiff can appear at trial
because of deportation, the court may dismiss the case for failure to prosecute after providing
plaintiff with a reasonable time to rectify the order of deportation.”).
CONCLUSION
For the reasons stated, Defendant Philips and Tryon’s Motion for Summary Judgment
(ECF Nos. 29-34) is DENIED WITHOUT PREJUDICE, Plaintiff’s Motion to Appoint Counsel
(ECF No. 36) is DENIED WITHOUT PREJUDICE, and Plaintiff’s Motions for Preliminary
Injunctions (ECF Nos. 37, 41) are DENIED AS MOOT.
Further, Plaintiff is ORDERED to file with the Court a copy of the written consent of the
United States Attorney General or her designee for Plaintiff to reapply for admission into the
United States. If a copy of such written consent is not filed on or before April 14, 2017, this
action will be dismissed for Plaintiff’s inability to prosecute this case.

IT IS SO ORDERED.
Dated: January 10, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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