Parker v. United States et al

Filing 68

ORDER Parker's motions to appoint counsel 47 , 64 are denied without prejudice to renewal following the district court's decisions on the pending dispositive motions and his request to extend his time to respond to the pending motion for summary judgment 64 is granted. The Court's motion scheduling order 55 is modified as follows: plaintiff's response/opposition is due by December 6, 2018, and defendants' reply is due December 20, 2018. Defendant Blackerby' ;s motion to stay discovery 41 is granted in part and denied in part. Parker's motion to compel 51 is denied without prejudice to renewal. Specifically, if Parker wishes to challenge any interrogatory responses served by defendants, he mus t write to counsel by no later than November 21, 2018, to identify the response(s) he finds deficient and the reasons why, and confer with counsel about those deficiencies by no later than November 30, 2018. If that conferral does not resolve the di spute(s), Parker may file a motion to compel by no later than December 21, 2018. Finally, Parker's motion for a protective order 52 is denied. The parties are directed to submit to this Court a proposed confidentiality order by no later than November 30, 2018. In addition, the Clerk of the Court is directed to seal Exhibits 3, 4, 5, 6, 8, 15, 16 to [49-2] from public access. Signed by Hon. Marian W. Payson on 11/08/18. (CMC)-CLERK TO FOLLOW UP- (Main Document 68 replaced on 11/8/2018) (CAM).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
RONNIE JOE PARKER,
DECISION & ORDER
Plaintiff,
16-CV-6475W
v.
UNITED STATES et al.,
Defendants.
_______________________________________

MOTION TO APPOINT COUNSEL
On July 8, 2016, pro se plaintiff Ronnie Joe Parker (“Parker”) commenced this
action against the defendants alleging violations of his rights while hospitalized at Clifton
Springs Hospital. (Docket ## 1, 8, 10). Currently pending before this Court are two motions
filed by Parker seeking appointment of counsel. (Docket ## 47, 64).
It is well-settled that there is no constitutional right to appointed counsel in civil
cases. 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 assignment of counsel is clearly within the judge’s discretion. In re
Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). The factors to be considered in deciding whether
or not to assign counsel include the following:
1.

Whether the indigent’s claims seem likely to be of
substance;

2.

Whether the indigent is able to investigate the crucial facts
concerning his claim;

3.

Whether conflicting evidence implicating the need for
cross-examination will be the major proof presented to the
fact finder;

4.

Whether the legal issues involved are complex; and

5.

Whether there are any special reasons why appointment of
counsel would be more likely to lead to a just
determination.

Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Hodge v. Police Officers, 802
F.2d 58 (2d Cir. 1986).
The Court must consider carefully the issue of appointment of counsel because
“every assignment of a volunteer lawyer to an 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). Therefore, the Court must first look to the “likelihood of merit” of the underlying
dispute, Hendricks v. Coughlin, 114 F.3d at 392; Cooper v. A. Sargenti Co., Inc., 877 F.2d at
174, and “even though a claim may not be characterized as frivolous, counsel should not be
appointed in a case where the merits of the . . . claim are thin and his chances of prevailing are
therefore poor.” Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001)
(denying counsel on appeal where petitioner’s appeal was not frivolous but nevertheless
appeared to have little merit).
The Court has reviewed the facts presented herein in light of the factors required
by law and finds, pursuant to the standards promulgated by Hendricks, 114 F.3d at 392, and
Hodge v. Police Officers, 802 F.2d at 58, that the appointment of counsel is not necessary at this
time. As stated above, a plaintiff seeking the appointment of counsel must demonstrate a
likelihood of success on the merits. See id. Parker has not done so at this stage. Nor does
Parker’s case present any special reasons justifying the assignment of counsel. Although Parker

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maintains that he “lacks knowledge of the law” (Docket # 64), the docket reflects that he has
been able to participate in the litigation thus far by propounding written discovery requests and
filing motions in an effort to compel responses (Docket ## 51, 52, 53, 54). On this record,
Parker’s requests for the appointment of counsel (Docket ## 47, 64) are DENIED without
prejudice to renewal following the district court’s decisions on the pending dispositive motions.
(See Docket ## 26, 49).
One of Parker’s motions also requested an extension of time to respond to the
motion for summary judgment filed by several of the defendants. (Docket ## 49, 55, 64). That
request (Docket # 64) is GRANTED. The Court’s motion scheduling order (Docket # 55) is
modified as follows: plaintiff’s response/opposition is due by December 6, 2018, and
defendants’ reply is due December 20, 2018.

DISCOVERY MOTIONS
Also pending before this Court are three motions related to discovery: the first
was filed by counsel for defendant Joel Blackerby (“Blackerby”) and seeks an order staying
discovery (Docket ## 41, 42); the second and third were filed by Parker and seek, respectively,
an order compelling defendants Douglas Landy (“Landy”) and Kim Dean (“Dean”) to provide
further responses to interrogatories served on them (Docket # 51), and a protective order limiting
discovery concerning Parker’s “private and privilege[d] medical information not relevant to
[this] case” (Docket # 52).

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Blackerby’s Motion to Stay Discovery (Docket ## 41, 42)
The following procedural history is relevant to Blackerby’s motion for an order
staying discovery. On September 6, 2017, Assistant United States Attorney Michael S. Cerrone
entered a notice of appearance as counsel for defendant Blackerby. (Docket # 22). Two weeks
earlier the Court had issued a scheduling order establishing various deadlines, including a
deadline of March 9, 2018 for the completion of fact discovery and April 20, 2018 for the filing
of dispositive motions. (Docket # 20). On December 18, 2017, Blackerby filed a motion to
dismiss the complaint on multiple grounds, including qualified immunity. (Docket # 26). That
motion remains pending before the district court.
On March 2, 2018, one week before the expiration of the fact discovery period,
counsel for defendants Landy, Dean and Clifton Springs Hospital wrote to the Court to request a
thirty-day extension of the discovery deadline; the letter noted that plaintiff Parker joined in the
request. The request was granted, and the fact discovery deadline was extended until April 9,
2018. (Docket # 40). No other scheduling order deadlines were modified or extended. Four
days later, on March 7, 2018, defendant Blackerby filed the instant motion to stay discovery.
(Docket # 41). Blackerby urges the Court to stay discovery until the qualified immunity issue is
determined. (Docket # 42). Parker opposes the stay. (Docket # 50).1
Although Blackerby’s memorandum of law cites authority for the proposition that
a stay of discovery is generally appropriate to permit the issue of qualified immunity to be
determined on a dispositive motion (see Docket # 42 at 6-7), several considerations distinguish
this case. First, by the time Blackerby filed a notice of appearance, a scheduling order had

1

Parker’s opposition was originally docketed incorrectly as his opposition to defendants’ summary
judgment motion; the docketing error has now been corrected to reflect that Parker’s submission was made in
opposition to Blackerby’s motion for a stay. (See Docket # 50).

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already issued, and Blackerby subsequently participated in some discovery, apparently without
objection (Parker’s deposition, for example), although the extent of the discovery exchanged
between Parker and Blackerby is unclear (for example, as set forth below, the record is unclear
as to whether Blackerby answered Parker’s interrogatories). (See Docket # 56 at 2). In addition,
although the schedule was already in place and provided for a seven-month period within which
to complete discovery, Blackerby did not move for a stay until more than two months after the
filing of his motion to dismiss and one month before the expiration of the deadline. No
explanation has been tendered by Blackerby for the delay in seeking such relief.
Under these circumstances, the Court grants the motion to stay – except as to any
interrogatory responses already served by Blackerby that Parker finds deficient, which Parker
may pursue in accordance with the Court’s directions in the following section – on the following
condition: within ten days following the district court’s determination of Blackerby’s motion to
dismiss, to the extent any claims remain pending against Blackerby, counsel for Blackerby must
confer with Parker to discuss the discovery, if any, that both parties wish to pursue.2 Counsel for
Blackerby must promptly advise the Court in writing of the specific discovery sought and the
timeframe – not to exceed forty-five days – requested for that discovery.

Parker’s Motion to Compel (Docket # 51)
On April 23, 2018, Parker filed a motion to compel defendants to answer
interrogatories propounded by him. (Docket # 51). Defendants Landy and Dean opposed the
motion on the grounds that they had in fact answered the interrogatories, and they appended
copies of their responses to their opposition papers. (See Docket # 60 at Exhibit B). Defendant

2

If Blackerby has not already answered Parker’s interrogatories, Blackerby must do so following the
district court’s decision on his dismissal motion as directed infra.

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Blackerby opposed the motion on the grounds that it was premature because Parker had filed it
before the expiration of the thirty-day response period provided by Fed. R. Civ. P. 33(b)(2).
(Docket # 62). Indeed, counsel affirmed that the interrogatories were received at the same time
as the motion to compel. (Id. at ¶ 7). The record does not make clear whether Blackerby
subsequently responded or declined to do so in view of his motion for a stay.
Landy and Dean have responded to Parker’s interrogatories and have interposed
objections to a few. The record does not reveal which of the responses, if any, Parker believes to
be deficient. Should Parker wish to pursue further responses, he must first communicate with
counsel, identify the interrogatory responses he finds deficient and the reasons why, and confer
with counsel in an effort to resolve the disputed interrogatories before filing a motion to compel.
See Fed. R. Civ. P. 37(a)(1) (“The motion [for an order compelling discovery] must include a
certification that the movant has in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain it without court action”).
Accordingly, if Parker wishes to challenge any interrogatory responses served by
defendants, he must write to counsel by no later than November 21, 2018 to identify the
response(s) he finds deficient and the reasons why, and confer with counsel about those
deficiencies by no later than November 30, 2018. If that conferral does not resolve the
dispute(s), Parker may file a motion to compel by no later than December 21, 2018.
With respect to defendant Blackerby, in the event that he has already answered
the interrogatories, Parker must follow the same procedure outlined above if he believes that any
of the responses are deficient. In the event that Blackerby has not responded, his answers may
be deferred until fourteen days following any decision by the district court denying his motion to
dismiss.

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Parker’s Motion for a Protective Order (Docket # 52)
Parker’s third motion seeks an order protecting from disclosure his “private and
privilege[d] medical information not relevant to [this] case.” (Docket # 52). As an initial matter,
this dispute is not properly before the Court because plaintiff did not confer with counsel for
defendant before filing the motion in order to determine if the dispute could be resolved. The
Federal Rules of Civil Procedure require such a conferral before filing a discovery motion. See
Fed. R. Civ. P. 26(c)(1) (“The motion [for a protective order] must include a certification that the
movant has in good faith conferred or attempted to confer with other affected parties in an effort
to resolve the dispute without court action”).
The records that appear to be the subject of Parker’s motion are mental health
records from other facilities that predate his February 2014 hospitalization at Clifton Springs
Hospital. Counsel are directed to discuss with Parker whether defendants intend to rely upon
those records in this case and, if so, appropriate safeguards to limit public access to private and
sensitive medical information and to restrict the use of such records to this litigation. The parties
are directed to submit to this Court a proposed confidentiality order by no later than November
30, 2018. In addition, the Clerk of the Court is directed to seal Exhibits 3, 4, 5, 6, 8, 15, 16 to
Docket # 49-2 from public access.
CONCLUSION
For the reasons stated above, Parker’s motions to appoint counsel (Docket ## 47,
64) are DENIED without prejudice to renewal following the district court’s decisions on the
pending dispositive motions and his request to extend his time to respond to the pending motion
for summary judgment (Docket # 64) is GRANTED. The Court’s motion scheduling order

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(Docket # 55) is modified as follows: plaintiff’s response/opposition is due by December 6,
2018, and defendants’ reply is due December 20, 2018.
Defendant Blackerby’s motion to stay discovery (Docket ## 41, 42) is
GRANTED in part and DENIED in part as set forth above. Parker’s motion to compel
(Docket # 51) is DENIED without prejudice to renewal. Specifically, if Parker wishes to
challenge any interrogatory responses served by defendants, he must write to counsel by no later
than November 21, 2018, to identify the response(s) he finds deficient and the reasons why, and
confer with counsel about those deficiencies by no later than November 30, 2018. If that
conferral does not resolve the dispute(s), Parker may file a motion to compel by no later than
December 21, 2018. Finally, Parker’s motion for a protective order (Docket # 52) is DENIED.
The parties are directed to submit to this Court a proposed confidentiality order by no later than
November 30, 2018. In addition, the Clerk of the Court is directed to seal Exhibits 3, 4, 5, 6, 8,
15, 16 to Docket # 49-2 from public access.

IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
November 8, 2018

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