Baez v. Rathbun

Filing 18

DECISION & ORDER and AMENDED SCHEDULING ORDER denying without prejudice 17 Motion to Appoint Counsel. It is the plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se.; denying as moot 17 Motion f or Leave to Proceed in forma pauperis. Plaintiff was previously granted leave to proceed in forma pauperis.; granting 17 Motion for Extension of Time to File. The Court's 2/15/2017 Scheduling Order 16 shall be amended as follows: Mot ions to Join Parties/Amend Pleadings due by 8/2/2017. Plaintiff's Deposition due by 9/28/2017. Defendants' Initial Disclosures due by 6/10/2017. Discovery to be completed by 11/29/2017. Motions to Compel Discovery due by 12/13/2017. Disposi tive Motions due by 1/16/2018. Responses due by 2/20/2018. Replies due by 3/22/2018. Signed by Hon. Marian W. Payson on 4/11/2017. Copy of Decision & Order and Amended Scheduling Order sent by First Class Mail to plaintiff Richard Baez on 4/12/2017. (KAH)

Download PDF
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _______________________________________ RICHARD BAEZ, Plaintiff, v. DECISION & ORDER and AMENDED SCHEDULING ORDER 16-CV-6552L DEPUTY JEFFERY RATHBUN, Defendant. _______________________________________ On August 8, 2016, pro se plaintiff Richard Baez (“plaintiff”) commenced this action against the defendant pursuant to 42 U.S.C. § 1983 alleging, inter alia, that defendant violated his constitutional rights while he was incarcerated at the Monroe County Jail. (Docket # 1). Currently pending before this Court is plaintiff’s requests for appointment of counsel, to proceed in forma pauperis, and to extend the scheduling order. (Docket # 17). 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 [her] 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 the issue of appointment carefully, of course, 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. Plaintiff has not done so at this stage. Moreover, the legal issues in this case do not appear to be complex, nor does it appear that conflicting evidence 2 will implicate the need for extensive cross-examination at trial. Finally, plaintiff’s case does not present any special reasons justifying the assignment of counsel. On this record, plaintiff’s request for the appointment of counsel (Docket # 17) is DENIED without prejudice at this time. It is the plaintiff’s responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C. § 1654. With respect to plaintiff’s request to proceed in forma pauperis (Docket # 17), that request is DENIED as MOOT. Plaintiff was previously granted leave to proceed in forma pauperis. (Docket # 6). Finally, plaintiff’s request to extend the scheduling deadlines (Docket # 17) is GRANTED. This Court’s February 15, 2017 Scheduling Order (Docket # 16) shall be amended as follows: 1. All motions to join other parties or to amend pleadings shall be filed by August 2, 2017. 2. The defendants may depose the plaintiff pursuant to Fed. R. Civ. P. 30(a), in person or by telephone at the correctional facility where plaintiff resides at the time of the deposition. The plaintiff shall be provided reasonable notice, at least 30 days in advance of the deposition, pursuant to Fed. R. Civ. P. 30(b)(1). If the plaintiff’s deposition is to be taken in person, such security measures shall be taken as are necessary in the opinion of the superintendent of the correctional facility where the deposition is to be taken, including, but not limited to, the presence of corrections officers in the examining room, but provided that no officer assigned as a member of a security detail is a party to this action. Such deposition must be completed by September 28, 2017. 3. Not later than June 10, 2017, defendants shall provide to plaintiff the names of all persons who were present at, witnessed, or investigated the events from which the 3 plaintiff’s claims arose. Defendants shall also provide to plaintiff copies of any documents prepared by any employee of the State of New York, including the Inspector General, in connection with the events from which the plaintiff’s claims arose including, but not limited to, the following: Incident reports, intra departmental memoranda, use of force reports, photographs, videotapes, witness statements, misbehavior reports, medical treatment records (if release is properly authorized), and transcripts of disciplinary hearings. If counsel for one or more defendants in good faith believes that production of any of the required documents may disrupt or interfere with prison discipline or procedures, such documents may be produced only to the Court. Furthermore, the defendants and their counsel may redact documents produced to protect the identity of confidential informants, but unredacted copies shall be retained for production to the Court upon request. 4. All discovery in this case shall conclude on November 29, 2017. All motions to compel discovery shall be made returnable on or before December 13, 2017. 5. All dispositive motions shall be filed no later than January 16, 2018. NOTE: If the dispositive motion is filed against a party who is appearing in this action pro se, the moving party must include the advisement set forth in the notice attached to this Order. 6. Responding papers are due by February 20, 2018. Reply papers, if any, shall be filed by March 22, 2018. The motion will be taken under advisement without oral argument. 4 7. If no dispositive motions are filed, defense counsel shall notify the Court in writing on or before the dispositive motion deadline date. 8. No extension of the above cutoff dates will be granted except upon written joint motion, filed prior to the cutoff date, showing good cause for the extension. 9. In accordance with Fed. R. Civ. P. 16(f), if a party or party’s attorney fails to obey this scheduling order or fails to participate in good faith, this Court will enter appropriate sanctions against that party or that party’s attorney, including dismissal of this action, if appropriate. IT IS SO ORDERED. s/Marian W. Payson MARIAN W. PAYSON United States Magistrate Judge Dated: Rochester, New York April 11, 2017 5 PRO SE NOTICE Plaintiff is hereby advised that the defendant has asked the Court to decide this case without a trial, based on written materials, including affidavits, submitted in support of the motion. THE CLAIMS PLAINTIFF ASSERTS IN HIS/HER COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF HE/SHE DOES NOT RESPOND TO THIS MOTION by filing his/her own sworn affidavits or other papers as required by Rule 56(e). An affidavit is a sworn statement of fact based on personal knowledge that would be admissible in evidence at trial. In short, Rule 56 provides that plaintiff may NOT oppose summary judgment simply by relying upon the allegations in the complaint. Rather, plaintiff must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising issues of fact for trial. Any witness statements, which may include plaintiff’s own statements, must be in the form of affidavits. Plaintiff may file and serve affidavits that were prepared specifically in response to defendant’s motion for summary judgment. Any issue of fact that plaintiff wishes to raise in opposition to the motion for summary judgment must be supported by affidavits or by other documentary evidence contradicting the facts asserted by defendant. If plaintiff does not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the facts asserted by defendant, the Court may accept defendant’s factual assertions as true. Judgment may then be entered in defendant’s favor without a trial. Pursuant to Rules 7.1(e) and 56.1 of the Local Rules of Civil Procedure for the Western District of New York, plaintiff is required to file and serve the following papers in opposition to this motion: (1) a memorandum of law containing relevant factual and legal argument; (2) one or more affidavits in opposition to the motion; and (3) a separate, short, and concise statement of the material facts as to which plaintiff contends there exists a genuine issue to be tried, followed by citation to admissible evidence. In the absence of such a statement by plaintiff, all material facts set forth in defendant’s statement of material facts not in dispute will be deemed admitted. A copy of the Local Rules to which reference has been made may be obtained from the Clerk’s Office of the Court. If plaintiff has any questions, he/she may direct them to the Pro Se Office. Plaintiff must file and serve any supplemental affidavits or materials in opposition to defendant’s motion no later than the date they are due as provided in Rule 56.1(e) of the Local Rules of Civil Procedure for the Western District of New York. 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?