Baez v. Rathbun
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)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION & ORDER and
AMENDED SCHEDULING ORDER
DEPUTY JEFFERY RATHBUN,
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:
Whether the indigent’s claims seem likely to be of
Whether the indigent is able to investigate the crucial facts
concerning [her] claim;
Whether conflicting evidence implicating the need for
cross-examination will be the major proof presented to the
Whether the legal issues involved are complex; and
Whether there are any special reasons why appointment of
counsel would be more likely to lead to a just
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
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:
All motions to join other parties or to amend pleadings shall be filed by
August 2, 2017.
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.
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
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,
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
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.
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.
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
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
If no dispositive motions are filed, defense counsel shall notify the Court
in writing on or before the dispositive motion deadline date.
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.
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
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
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.
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?