Gibson v. Smith
DECISION AND ORDER denying 4 Motion ; denying 5 Motion to Appoint Counsel ; denying 7 Motion ; denying 8 Motion. The Court sua sponte extends plaintiffs time to serve defendant to January 8, 2018. (Clerk to mail copy of Decision and Order to Plaintiff by first class mail.) Signed by Hon. Michael A. Telesca on 11/22/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RAMON CHARLES GIBSON,
DECISION AND ORDER
BEVERLY CASIOPIA SMITH,
“Gibson”) commenced the instant action on July 10, 2017, alleging
that defendant Beverly Casopia Smith (“defendant” or “Smith”)
knowingly misled him into believing he was the father of her minor
child, who was born in 2003, and thereby wrongfully caused him to
pay child support, as well as incurring other related expenses.
Plaintiff concurrently filed a motion for leave to proceed in forma
pauperis (Docket No. 2), which the Court denied on August 9, 2017
(Docket No. 3).
Plaintiff thereafter paid the filing fee on
September 1, 2017.
Plaintiff has subsequently filed four motions that are now
pending before the Court.
These motions include: (1) a motion to
appear telephonically ; (2) a motion to appoint counsel; (3) a
motion for service by publication; and (4) a motion to join a party
to the case.
For the reasons discussed below, each of these
motions is denied.
Motion to Appear Telephonically
Petitioner’s first motion (Docket No. 4) is a request to
appear telephonically and/or electronically. However, there are no
plaintiff’s motion is moot. Plaintiff’s motion is therefore denied
without prejudice to refiling if and when a court appearance is
Motion for Appointment of Counsel
Petitioner’s second motion (Docket No. 5) requests appointment
of counsel. Petitioner contends that he cannot afford an attorney,
and asks the Court to provide him with one.
Pursuant to 28 U.S.C. § 1915(e)(1), the Court may request an
attorney to represent a litigant who is unable to afford counsel.
See Sears, Roebuck & Co. v. Charles Sears Real Estate, Inc., 865
F.2d 22, 23-24 (2d Cir. 1988). It is ultimately within the Court’s
Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984).
“There is no
requirement that an indigent litigant be appointed pro bono counsel
in civil matters. . . .”
Burgos v. Hopkins, 14 F.3d 787, 789 (2d
In making its determination, the Court must consider “the
merits of [the] plaintiff’s case, the plaintiff's ability to pay
availability of counsel, and the plaintiff’s ability to gather the
facts and deal with the issues if unassisted by counsel.”
v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989).
where the claim is not frivolous, counsel is often unwarranted
where the indigent’s chances of success are extremely slim."
(quoting Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir.
This is because "every assignment of a volunteer lawyer
to an undeserving client deprives society of a volunteer lawyer
available for a deserving cause.”
In this case, the Court has reviewed plaintiff’s complaint and
motion and finds that appointment of counsel is not warranted at
As a threshold matter, plaintiff has not submitted
evidence to the Court demonstrating that he is indigent.
Court noted in its denial of plaintiff’s motion for in forma
pauperis status, the financial information submitted by plaintiff
was incomplete and failed to provide the Court with a full picture
of plaintiff’s financial status.
Plaintiff’s most recent filing
fails to remedy these deficiencies.
particularly substantial likelihood of success on his claims.
significant portion of plaintiff’s claims are clearly insufficient
as a matter of law.
For example, petitioner has alleged a number
of constitutional violations, despite the fact that defendant is a
private individual and not a state actor.
Plaintiff has further
attempted to state claims based on a number of federal criminal
generally do not provide private causes of action. See Robinson v.
Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994).
Moreover, this case in the very earliest stages and, based on his
submissions thus far, plaintiff appears to have the intelligence
and resourcefulness necessary to litigate on his own behalf.
Accordingly, the Court determines that appointment of counsel is
not warranted at this juncture and denies plaintiff’s motion
without prejudice to renewal at a later stage of the proceedings.
III. Motion for Service by Publication
Plaintiff’s third motion (Docket No. 7) requests permission to
plaintiff alleges the following: (1) defendant has an unstable
living situation, including sometimes living in her car; (2) the
Monroe County Sheriff’s Office has attempted to serve defendant,
but has been unable to do so; and (3) plaintiff tried to serve
defendant at her mother’s house, but her mother refused service,
Plaintiff has submitted an Affidavit of Attempted Service completed
by the Monroe County Sheriff’s Office documenting that office’s
attempts to serve defendant and confirming that defendant’s mother
“To submit a party to the jurisdiction of a court, due process
has long been held to require the giving of notice in such a manner
that there can be little doubt that the party has actual notice of
the claims in order to appear and defend.”
F.2d 1086, 1092 (2d Cir. 1987).
S.E.C. v. Tome, 833
Pursuant to Federal Rule of Civil
Procedure (“FRCP”) 4(e), what constitutes acceptable service upon
reference to state law.
“In New York State, service may be
effected “in such manner as the court, upon motion without notice
directs, if service is impracticable under paragraphs one [personal
service], two [leave and mail service] and four [nail and mail
service] of this section.”
S.E.C. v. HGI, Inc., 1999 WL 1021087,
at *1 (S.D.N.Y. Nov. 8, 1999) (quoting New York Civil Practice Law
and Rules (“CPLR”) § 308(5).
“The meaning of ‘impracticability’
depends upon the facts and circumstances of the particular case.”
Here, plaintiff seeks leave to serve defendant by publication.
otherwise impossible and when it is reasonable to conclude that the
defendant is likely to read the newspaper in which the notice is
published, particularly when the defendant is otherwise on notice
that there may be a case pending against him.”
Javier H. v.
Garcia-Botello, 217 F.R.D. 308, 309 (W.D.N.Y. 2003) (internal
Based on the facts provided by plaintiff, the Court is unable
appropriate. In particular, the Court notes that plaintiff has not
identified affirmative steps he has taken to discover defendant’s
address, such as inquiring at the United States Postal Service or
searching computerized databases, nor has he proposed a newspaper
in which service by publication could be made, such that the Court
information regarding whether defendant has an “actual place of
business” within the State of New York where she could be served
pursuant to CPLR §§ 308(2) or (3).
Finally, the Court cannot
conclude that defendant is otherwise on notice that a case may be
pending against her, inasmuch as her mother apparently told the
Monroe County Sheriff’s Office that she has very limited contact
with her daughter.
Accordingly, plaintiff’s motion for service by publication is
denied without prejudice.
If plaintiff still wishes to seek
service by publication, plaintiff may submit to the Court a motion
with additional information regarding the issues identified above.
The Court further notes that, pursuant to FRCP 4(m), plaintiff
had 90 days after filing of the complaint in which to serve
The time while plaintiff’s petition for in forma
pauperis status was pending is excluded from this time period, see
Sidney v. Wilson, 228 F.R.D. 517, 523 (S.D.N.Y. 2005), and so
plaintiff’s time for service expired on November 7, 2017. However,
the Court finds that, particularly in light of plaintiff’s pro se
status and his efforts to effect service, there is good cause to
extend plaintiff’s time for service. Accordingly, pursuant to FRCP
4(m), the Court sua sponte extends plaintiff’s time to serve
defendant to January 8, 2018.
Motion to Join a Party
Plaintiff’s final motion (Docket No. 8) requests leave to join
the Monroe County Department of Human Services (the “MCDHS”) as a
party to this action.
This motion is denied with prejudice.
17(b) provides that the capacity of a county department such as the
MCDHS to sue or be sue is determined with reference to New York
“Under New York law, departments which are merely
administrative arms of a municipality have no separate legal
identity apart from the municipality and therefore cannot sue or be
S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 302 (S.D.N.Y.
Health); see also McKenzie v. Cty. of Erie, 2013 WL 5348084, at *2
departments of Erie County on same basis).
As such, there is no
legal theory under which plaintiff can sue the MCDHS, and it would
be futile for the Court to permit him to join the MCDHS as a party.
For the reasons discussed above, plaintiff’s motion to appear
telephonically, his motion for appointment of counsel, and his
motion to provide service by publication (Docket Nos. 4, 5, and 7)
are denied without prejudice. Plaintiff’s motion to join the MCDHS
as a party (Docket No. 8) is denied with prejudice.
The Court sua
sponte extends plaintiff’s time to serve defendant to January 8,
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
November 22, 2017
Rochester, New York
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