Johnson v. Annucci et al

Filing 59

ORDER denying 55 Motion to Appoint Counsel ; finding as moot 56 Motion for Leave to Proceed in forma pauperis. Signed by Hon. Jonathan W. Feldman on 11/21/2016. A copy of this Order has been sent to pro se plaintiff. (JKT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANDRE A. JOHNSON,
Plaintiff,

DECISION & ORDER

15-CV-6591

v.

ANTHONY ANNUCCI, Commissioner of
DOCCS, and TINA STANFORD, Chairwoman
Of the Division of Parole,
·Defendants.

Preliminary Statement

Pro

se

plaintiff Andre

Johnson

instant action under 42 U.S.C.
Anthony

Annucci,

the

§

("plaintiff")

brings

the

1983, alleging that defendants

Commissioner

of

the

New

York

Department of Corrections and Community Supervision,

State

and Tina

Stanford, the Chairwoman of. the Division of Parole violated his
civil

rights

by

parole jail time.

failing

to

properly

credit

plaintiff

See Amended Complaint (Docket# 4); see also

Order Denying Motion to Dismiss (Docket # 27) .
the

Court

with

Pending before

is plaintiff's motion to appoint counsel, (Docket #

55), and a request to proceed in forma pauperis

(Docket# 56),

both dated October 5, 2016.

Discussion

In

his

motion,

plaintiff

argues

that

he

needs

Court-

appointed counsel because he is inexperienced in the matters of

law and needs

assistance

in

filing

(Docket # 55) .

Appoint Counsel

motions.

. See

Motion

to

For the reasons that follow,

plaintiff's motion is denied without prejudice to renew.
Indigent
not

have

Hopkins,
court

a
14

has

indigent

civil

litigants,

constitutional
F.3d
the

787,

right

789

discretion

(2d

facts of the case warrant it.

to

counsel.

Cir.

to

litigants pursuant

W Sears Real Estate,

unlike criminal defendants,

1994).

appoint

to

28

See

Burgos

Nevertheless,

counsel

U.S.C.

do

§

.to

v.
a

represent

1915(e)

when the

Sears, Roebuck & Co. v. Charles

Inc., 865 F.2d 22,

23

(2d Cir. 1988); see

also, In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984).
The Second Circuit set forth the factors

to be considered in

deciding whether or not to assign counsel in Hodge v.

Police

Officers:
[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 the case why
appointment of counsel would be more likely to lead
to a just determination.
802 F.2d 58, 61-62 (2d Cir. 1986)
In

applying

plaintiff's

the

allegations

Hodge

factors,

satisfy the

2

the

initial

Court

finds

threshold

that

showing

of merit.
582

See, e.g., Mackey v. DiCaprio, 312 F. Supp. 2d 580,

(S.D.N.Y.

claims

that

punishment

2004) (finding that plaintiff's Eighth Amendment
defendants

satisfied

subjected

threshold

him

to

showing

cruel

of

and

merit);

unusual
see

also

Allen v. Sakellardis, No. 02 CV 4373, 2003 WL 22232902, at *1-2
(S.D.N.Y.
that

Sept.

29,

2003)(finding

correctional

officers

that plaintiff's allegation

assaulted

him

while

he

restrained "appears to have some chance of success").

was

However,

after reviewing the complaint and considering the nature of the
factual

and

legal

issues

ability

to

present

his

appointment

of

counsel

"Volunteer

lawyer

involved,
claims,

is

not

as

the

well
Court

warranted

at

as

plaintiff's

concludes
this

that

particular

time.
time

is

a

precious

commodity"

"should not be allocated arbitrarily."

Cooper v. A.

Co.,

Here,

877 F .2d 170,

172

(2d Cir.

1989).

that

Sargenti

plaintiff's pro

se complaint is straightforward as to the nature of the events
from

which

he

is

seeking

surrounding plaintiff's
complicated,

relief.

claims

The

do not

and indeed the factual

legal

appear

circumstances

to be unusually

circumstances seem likely

to be resolved with minimal discovery.

The case centers on the

question of whether plaintiff was properly credited with time
he spent in jail.
on

parole

from

Plaintiff claims that on May 15, 2012, while
a

prior

sentence,
3

he

was

arrested

on

new

charges.

Plaintiff

states

awaiting the outcome

of

that

he

spent

the new charges,

should have been credited to

days

and that

See Amended Complaint

conviction.

current

see

also Decision and Order Granting

in

(Docket # 45).

District Court Judge Siragusa

in

those days

Part

(Docket #

the

in

Based on a referral from

(Docket# 52),

plaintiff

conference,

to
4) ;

and Denying

this Court held a

Scheduling Conference with both parties on November 16,
At

jail

the parole violation and not

his

Part Motion to Dismiss

486

appeared

2016.

telephonically

and

clearly articulated what outstanding documents and information
he

would

like

Scheduling

to

Show

receive

a

in

order

(Docket

Order

submitted
papers,

to

#

58).

well-drafted

and

Cause.

See

logical

his

case.

addition,

complaint

this

##

1,

juncture

at

knowledgeable

handle the litigation.
F.Supp.2d 356,
where
legal

[plaintiff]

"the

358

See

plaintiff

and

motions

and

4,

equipped

45,

and

plaintiff
to

46.

appears

understand

and

See Castro v. Manhattan E. Suite Hotel,
(S.D.N.Y.

case

issues,

27,

least,

sufficiently

complex

In

Dockets

at

counsel

argue

and has withstood two motions to dismiss and an Order

Accordingly,

279

to

does
and

2003) (denying appointment
not

there

present
is

no

novel

indication

lacks the ability to present his case") .

limited resources available with respect

or

of

overly
that

Given the

to pro bono counsel,

the Court finds no "special reason" why appointment of counsel
4

now would be more likely to lead to a just determination.
Boomer v.

Deperio,

No.

(W.D.N.Y.

Jan.

2005) (denying

3,

03

CV 6348L,

2005

motion

WL 15451,
to

See

at

appoint

*l-2

counsel

despite plaintiff's claims that the matter was complex and he
had a limited knowledge of law); Harris v. McGinnis, No.
6481,

2003 WL 21108370,

at *2

(S.D.N.Y.

May 14,

02 CV

2003) (denying

motion for appointment of counsel where plaintiff "offered no
special

reason why appointment of

likelihood

of

a

just

counsel would increase
Should

determination").

he

the

need,

plaintiff may consult with the Western District's prose office
attorneys

for

questions

on

discovery

process

and

procedure.

Plaintiff's motion to appoint counsel is denied.

Conclusion

Plaintiff's
55) is denied.

motion

for

appointment

of

counsel

(Docket

Plaintiff's motion to proceed in forma pauperis

(Docket # 56) is moot.

Plaintiff was granted in forma pauperis

status by Court Order on October 16, 2015 (Docket # 3).
SO ORDERED.

Magistrate Judge
Dated:

#

November U' 2016
Rochester, New York

5