Sanders v. Niagara County et al

Filing 73

ORDER granting in part and denying in part 72 Motion to Appoint Counsel and ORDER denying Plaintiff's request that the Court order initial disclosures made during the Rule 16 conference. The Court will appoint pro bono counsel exclusive for t he following purposes: (1) to consult with Plaintiff concerning a potential motion to amend; (2) to analyze Plaintiff's proposed amendments; and (3) if pro bono counsel determines that the proposed amendments have merit, pro bono counsel may bring a motion to amend the complaint. Signed by Hon. Mark W. Pedersen on 11/14/23. (Hartsough, Harrison)This was mailed to: Travis D. Sanders.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Travis D. Sanders,
Plaintiff,

DECISION and ORDER

v.

21-cv-6585-FPG-MJP

Niagara County, et al.,
Defendants.
APPEARANCES
For Plaintiff:

Travis D. Sanders, pro se
Allenwood Low
Federal Correction Institution
P.O. Box 1000
White Deer, PA 17887

For Defendant Niagara County,
and its employees or agents:

For Defendant PrimeCare Medical,
and its employees or agents:

Brian P. Crosby, Esq.
Gibson, McAskill & Crosby, LLP
69 Delaware Ave, Ste 900
Buffalo, NY 14202-3866
Paul A. Sanders, Esq.
Barclay Damon, LLP
2000 Five Star Bank Plaza
100 Chestnut St
Rochester, NY 14604

INTRODUCTION
Pedersen, M.J. Pro se Plaintiff Travis Sanders has moved for appointment
of counsel. (ECF No. 72, Nov. 9, 2023.) Separately, during the Rule 16 conference on
October 31, 2023, Sanders argued that the Court should order initial disclosures
from all parties—despite an exemption in the Federal Rules of Civil Procedure for
pro se prisoner cases. The Court introduces these topics in turn.

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Although he is incarcerated, Sanders requests initial disclosures.
Initial disclosures under Rule 26 are the most basic element of discovery.
Indeed, the Federal Rules require parties to serve them automatically. Fed. R. Civ.
P. 26(a)(1)(A) (“[A] party must, without awaiting a discovery request, provide”
initial disclosures.). And Rule 26’s 2000 Amendment Committee note anticipates
that the parties will administer mandatory disclosures on their own. Ideally, the
Court will not be involved.
But here, the parties have a dispute requiring the Court’s attention. Happily,
this dispute is not garden variety: neither party has failed to make initial
disclosures. Instead, Travis Sanders, a pro se prisoner, presented a well-reasoned
argument that the Court has discretion to order the parties to provide initial
disclosures under Rule 26.
Sanders’ argument, and Defendants’ response, present two questions the
Court must answer. First, does the word “exempt” in Fed. R. Civ. P. 26(a)(1)(B)
mean the Court lacks discretion to require initial disclosures in this case? Rule
26(a)(1)(B)(iv) exempts from the initial disclosure requirement “an action brought
without an attorney by a person in the custody of the United States, a state, or a
state subdivision.” And second, does Sanders’ case as a pro se prisoner fall into the
exemption stated in Fed. R. Civ. P. 26(a)(1)(B)(iv) because he “brought” this case
without counsel, even though a pro bono attorney filed his second amended
complaint? The Court says yes to both.

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The Court lacks discretion to order initial disclosures because Sanders
brought his case without an attorney within the meaning of Fed. R. Civ. P.
26(a)(1)(B)(iv). The Court thus denies Sanders’ request for initial disclosures.
Sanders moves for appointment of counsel.
Many pro se parties ask this Court for an attorney. And many undoubtedly
need an attorney’s help. But there are few attorneys the Court can appoint and far,
far more pro se parties who would like one. The Court must be careful when
appointing counsel. The Court will appoint counsel only in limited situations.
This is one of those limited situations. Although Sanders has presented
cogent legal arguments both at the Rule 16 conference and in the very motion in
which he requests counsel, it appears—based on the claims he brings—that his case
may be complex. And Sanders is currently incarcerated in a federal prison in
Pennsylvania. In that prison, he lacks access to New York State law resources. Yet
those are the very claims he would like to add to his complaint. The Court will thus
appoint pro bono counsel exclusively for the following purposes: (1) to consult with
Sanders about a potential motion to amend; (2) to analyze Sanders’ proposed
amendments; and (3) if pro bono counsel determines that Sanders’ proposed
amendments have merit, pro bono counsel may then bring a motion to amend.
PROCEDURAL HISTORY
Sanders sues Niagara County Jail and its contractor for his COVID-19
exposure.
Travis Sanders sued Niagara County Jail for his exposure to COVID-19 while
incarcerated there. Sanders alleges that Defendants failed to follow proper safety
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protocols to prevent the spread of COVID-19, causing him to contract the virus and
suffer severe symptoms.
Sanders’ woes allegedly did not stop there. Sanders also alleges that
Defendants failed to properly treat his COVID-19 symptoms, falsified medical
records to make his symptoms seem less serious, and retaliated against him for
filing grievances. He also alleges retaliation by prison officials for his filing of
grievances about his treatment.
This case just reached a Rule 16 conference despite being over two years old.
It appears that it has taken some time for the defendants to be identified. And
Sanders has filed an amended and second amended complaint. (Am. Compl., ECF
No. 12, Jan. 27, 2022; 2d Am. Compl., ECF No. 22, June 21, 2022.) To focus Sanders’
allegations, the Hon. Frank P. Geraci, District Judge, appointed counsel to help
Sanders file that complaint. (Text Order, ECF No. 13, Mar. 8, 2022; Order
Appointing Pro Bono Counsel, ECF No. 14, Mar. 28, 2022.) Once the newly named
defendants answered the second amended complaint, Judge Geraci referred this
case to the undersigned for pretrial matters. (Text Order, ECF No. 66, Sept. 19,
2023.)
Sanders’ second amended complaint includes PrimeCare and the Jail and
numerous individual defendants. The individual defendants generally fall under the
umbrella of either PrimeCare or the Jail. Given the number of defendants and
impending discovery exchanges, Sanders asked the Court to require initial
disclosures of all parties.

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The parties dispute the meaning of Rule 26(a)(1).
Specifically, during the Rule 16 conference, the Court learned that Sanders
wants all parties to exchange initial disclosures. The Court also learned that
Sanders has been incarcerated from the beginning of this case. Defendants objected,
arguing that this “proceeding[]” is exempt from the initial disclosure requirement
under Fed. R. Civ. P. 26(a)(1)(B).
To overcome Defendants’ objection, Sanders made several arguments. First,
Sanders argued that he would be prejudiced if he is not afforded initial disclosures.
He noted that he will have to expend interrogatory requests to learn the same
information that initial disclosures would provide. And he pointed out that initial
disclosures would be helpful for his planned amendment of his complaint. Second,
Sanders pointed out that Defendants had not objected until the Rule 16 conference. 1
Finally, Sanders argued that the Court has discretion to require initial disclosures
of all parties. Despite the plain language of Fed. R. Civ. P. 26(a)(1)(B)(iv), he argues
that the Court has discretion to “otherwise … order[]” initial disclosures. Fed. R.
Civ. P. 26(a)(1).
The Court reserved decision.

To the extent that the Court’s pre-Rule 16 conference order said Defendants
had to raise this objection before the conference, the text of Rule 26 governs and
prevents Sanders from obtaining initial disclosures. (Order ¶ 2, ECF No. 67, Sept.
25, 2023.)
1

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Sanders moves, for the third time, for appointment of counsel.
Following the Rule 16 conference, Sanders moved for appointment of counsel
on November 9, 2023. (ECF No. 72.) This is not Sanders’ first such motion.
Judge Geraci denied Sanders’ first motion for appointment of counsel,
reasoning that “the Court lacks sufficient information to consider the [relevant]
factors.” (Order at 26, ECF No. 9, Dec. 2, 2021.) Judge Geraci also pointed out that
Sanders presented only non-unique arguments that he “cannot afford counsel” and
that he lacks “the knowledge or resources to ‘adequately’ represent himself.” (Id.
(citation omitted).)
Eventually, Judge Geraci did appoint counsel “[t]o assist [Sanders] in
presenting a more coherent amended complaint in conformance with Rules 8 and 10
of the Federal Rules of Civil Procedure and the Screening Order.” (Text Order, ECF
No. 13; see also Order Appointing Pro Bono Counsel, ECF No. 14.) The Court
appointed counsel for the limited purpose of amending Sanders’ first amended
complaint. (See id.) Now Sanders seeks similar relief. This order followed.
DISCUSSION REGARDING INITIAL DISCLOSURES
Rule 26 requires mandatory disclosures but exempts proceedings involving
pro se prisoners.
“The purpose of Rule 26 mandatory disclosures is to notify the parties of the
claims each party intends to pursue, the individuals who may have relevant
information, the documents to support those claims, and a computation of the
damages sought, so that the parties can adequately prepare for trial.” Kodak
Graphic Commc’ns Canada Co. v. E.I. Du Pont de Nemours & Co., No. 08-CV-65536

FPG, 2013 WL 5739041, at *2 (W.D.N.Y. Oct. 22, 2013). Rule 26 accordingly
requires parties to produce this information “without awaiting a discovery request.”
Fed. R. Civ. P. 26(a)(1)(A). But Rule 26(a)(1) has exemptions.
Rule 26 starts out concerning initial disclosures: “Except as exempted by
Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court,” the parties
must make mandatory disclosures. Id. Lower, the Rule lists the exemptions. Rule
26(a)(1)(B)

provides:

“The

following

proceedings

are

exempt

from

initial

disclosure[.]” One of the exempt proceedings is any “action brought without an
attorney by a person in the custody of the United States, a state, or a state
subdivision.” Fed. R. Civ. P. 26(a)(1)(B)(iv). The key here is whether the word
“exempt” provides the Court discretion to require Defendants to make initial
disclosures. The Court holds that it does not.
The Court lacks discretion to require mandatory disclosures here.
The Court does not have discretion to remove Defendants’ “exemption” from
mandatory disclosures here. This is because “exempt” and its noun form
“exemption” refer to “specific release from a legal obligation by which others
similarly situated are bound.” Immunity, Garner’s Dictionary of Legal Usage (3d ed.
2011). 2 Tax law is a helpful analogue: It shows why the Court lacks discretion.

This entry in A Dictionary of Modern Legal Usage also defines “exemption.”
The Advisory Committee’s notes concerning the Rule 26 exemptions likewise
support the Court’s conclusion. They indicate that Fed. R. Civ. P. (a)(1)(B) “excludes
eight specified categories of proceedings from initial disclosure.” Fed. R. Civ. P.
(a)(1) advisory committee’s note to 2000 amendment (emphasis added).
2

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Defendants are exempt in the same way that a 501(c)(3) organization is
exempt from paying taxes. The IRS cannot levy taxes on them. So too here. The law
does not give the Court discretion to require Defendants to serve mandatory
disclosures. See Ward v. LeClaire, No. 9:07-CV-0026 (LEK) (RFT), 2008 WL
1787753, at *3 (N.D.N.Y. Apr. 17, 2008) (holding that a pro se prisoner plaintiff
could not succeed on a motion to compel because “this case is and continues to be
exempt from [initial disclosures] and the Assistant Attorney General assigned to
this case shall not be faulted for her failure to turn such information over”). Rule
26(a)(1)(B)(iv) tells the Court that it cannot require Defendants to serve initial
disclosures. Sanders is correct that there is some discretion: A party entitled to an
exemption need not take advantage of it.
But unlike the New York State Attorney General’s Monroe County office—
which despite its exemption for initial disclosures will voluntarily hand over initial
disclosures—Defendants here have objected to doing so. See, e.g., Pettiford v. C.O.
Michael Hosmer, No. 13-CV-436-FPG, 2016 WL 4987600, at *2 (W.D.N.Y. Sept. 19,
2016) (noting that despite the case being “exempt from the directives of Rule 26(a)”
defendants represented by the Attorney General “nevertheless” provided initial
disclosures). It is up to Defendants, not the Court, to decide if they will use the
exemption. See Ward, 2008 WL 1787753, at *3; see also Walker v. Newsom, No.
220CV2243TLNACP, 2022 WL 2670328, at *1 (E.D. Cal. July 11, 2022) (denying
pro se prisoner plaintiff initial disclosures because “this case is exempt from Federal
Rule of Civil Procedure 26(f),” which applies the exemptions of Fed. R. Civ. P.

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26(a)(1)(B)). Defendants are exempt and therefore the Court cannot require them to
produce initial disclosures. 3
Sanders “brought” this case “without an attorney.”
This is plainly “an action brought without an attorney” by a pro se prisoner.
Yet Sanders argues that because he had pro bono counsel at the filing of his second
amended complaint, the provision does not apply. Not so.
Despite Sander’s imaginative argument, the word “brought” indicates the
beginning of the case—which Sanders “brought” while pro se. See Ward, 2008 WL
1787753, at *2 (“Patently, the exemption set forth in Rule 26(a)(1)(B)(iv) looks at
Plaintiff’s status at the time the action was ‘brought,’ in other words, when it was
filed.”). Because Sanders “brought” this action without an attorney by filing his
complaint, (ECF No. 1), Sanders cannot escape Rule 26(a)(1)(B)(iv) this way. The
provision does not say, for example: “is bringing without an attorney.” That phrase,
because it is in the present progressive, would encompass Sanders’ starting his case
and continuing it. But “brought” refers only to the outset of Sanders’ case.
Some courts have objected that reading the rule such that “where an action is
commenced by a pro se prisoner, it is forever exempt from Rule 26.” Meneweather v.
Powell, No. C 07-4204 SBA (PR), 2011 WL 13209593, at *1 (N.D. Cal. Dec. 13,
2011). Hardly. “Forever exempt from Rule 26” is overstatement. Forever exempt
By explaining the plain meaning of “exempt” and “exemption” here, the
Court rejects Sanders’ argument concerning the phrase “or as otherwise stipulated
or ordered by the Court.” Fed. R. Civ. P. 26(a)(1)(A). Given the plain meaning of
Rule 26(a)(1)(B), which states that pro se prisoner cases “are exempt from initial
disclosure,” the Court cannot read a contradictory provision into the Rule.
3

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from Rule 26(a)(1)(A) is accurate. And whatever the wisdom of this choice, the
meaning of the text is unambiguous. Courts cannot circumvent a rule or statute’s
plain language.
DISCUSSION REGARDING APPOINTMENT OF COUNSEL
“Unlike criminal defendants, prisoners and indigents filing civil actions have
no constitutional right to counsel.” Mackey v. DiCaprio, 312 F. Supp. 2d 580, 581
(S.D.N.Y. 2004) (quotation omitted). Still, in rare cases, the Court may appoint an
attorney to help a pro se party. See, e.g., Sears, Roebuck & Co. v. Charles W. Sears
Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). The decision to appoint counsel is
within “the discretion of the court.” In re Martin-Trigona, 737 F.2d 1254, 1260 (2d
Cir. 1984) (citation omitted). But the Court is mindful that there are far more
requests for attorneys than the Court can provide. See Cooper v. A. Sargenti Co.,
877 F.2d 170, 172 (2d Cir. 1989) (“Volunteer lawyer time is a precious commodity”
that “should not be allocated arbitrarily.”). The Court should carefully consider the
law before granting a pro se party an attorney.
Here, Sanders’ motion should be granted exclusively for the following
purposes: (1) to consult with Sanders concerning a potential motion to amend; (2) to
analyze Sanders’ proposed amendments; and (3) if pro bono counsel determines that
Sanders’ proposed amendments have merit, pro bono counsel may bring a motion to
amend. The Court does not comment on the merit of Sanders’ need for pro bono
counsel in discovery or for dispositive motions. (Mot. to Appoint Counsel at 1 ¶ 4,
ECF No. 72 (naming discovery and dispositive motions as areas for which Sanders

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would like pro bono counsel).) Sanders may make a separate request for counsel for
discovery and dispositive motions later.
The Hodge factors favor granting Sanders pro bono counsel for the limited
purpose of amending his complaint.
To begin, there is no serious question here that Sanders cannot “afford or
otherwise obtain counsel.” Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341
(2d Cir. 1994). Judge Geraci granted Sanders’ motion for leave to proceed in forma
pauperis. (Order, ECF No. 9, Dec. 2, 2021.) And Sanders has tried to find counsel.
(Mot. to Appoint Counsel, Ex. 3, ECF No. 72.) “If the claim meets this threshold
requirement, the court should then consider” the Hodge factors. Hodge v. Police
Officers, 802 F.3d 58, 61 (2d Cir. 1986). Analysis of these factors shows that
appointment of counsel is appropriate.
Likelihood of substance or merit. Under the relevant analysis, the Court
asks first if the pro se plaintiff’s “position seems likely to be of substance.”
Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (quoting Hodge, 802 F.2d at
61). The Court decides if the pro se party has claims that may succeed. See Stewart
v. McMickens, 677 F. Supp. 226, 228 (S.D.N.Y. 1988) (inquiry is if pro se plaintiff’s
claims may have merit “from the face of the pleading”). The Court believes that
Sanders’ allegations satisfy this requirement. Sanders pleads a sufficient
relationship between Defendants’ actions and his eventual injury. See Mackey, 312
F. Supp. 2d at 582 (finding that relationship between alleged police department
officers’ beating of pro se prisoner and resulting injuries “satisfied” the “threshold

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showing of merit” requirement). This does not mean that Sanders will succeed on
his claims—only that they have some merit. This favors appointment of counsel.
The pro se party’s ability to investigate. Next, the Court asks if the pro
se party has the resources to investigate facts about their claim. Many prisoners
present the Court with arguments that incarceration alone makes it difficult to
investigate their claims. Such arguments are unhelpful: this is true of every pro se
prisoner. If the Court gave every pro se prisoner legal counsel on this basis, the
Court would quickly exhaust its pro bono resources, leaving other pro se litigants
out in the cold.
While Sanders makes such an argument, (see Mot. to Appoint Counsel at 3
¶ 10, ECF No. 72), he also presents a unique argument that favors appointing
counsel. Sanders is incarcerated outside of New York State. And he presents
evidence that because of this he cannot access New York State law from “the
provided electronic law library from the BOP.” (Mot. to Appoint Counsel, Ex. 1, ECF
No. 72.) Sanders adds that he has yet to be provided with New York State law
resources. (See id., Ex. 4.) But the underlying events here took place in Niagara
County Jail—far from where Sanders is incarcerated in Pennsylvania. This strongly
favors appointing counsel to assist Sanders with evaluating if he can add state law
claims to his complaint. See Gatson v. Coughlin, 679 F. Supp. 270, 273 (W.D.N.Y.
1988) (noting that pro se prisoner’s “investigation presumably might not be
effectively conducted by plaintiff … due to the fact that, for the most part, the
events complained of took place at Attica and the plaintiff is now at Green Haven”).

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Conflicting evidence. Third, the Court asks if conflicting evidence will
require the pro se party to cross-examine witnesses. The parties are barely into
discovery. Yet Sanders asserts that “challenges will be made to [his] credibility” and
that “the facts of the case are going to be strongly disputed.” (Mot. to Appoint
Counsel at 4 ¶¶ 12–13, ECF No. 72 (alteration added).) It is simply too soon to tell if
Sanders’ claims will prove true.
Ability to present the case. In terms of his abilities, Sanders’ submissions
and arguments to the Court do not “demonstrate[] any marked difficulties in
presenting his case.” Mackey, 312 F. Supp. 2d at 582. To the contrary, his
arguments to this Court about initial disclosures suggest he is “sufficiently
knowledgeable and equipped to understand and handle th[is] litigation.” Nelson v.
McGrain, No. 12-CV-6292, 2017 WL 4155420, at *3 (W.D.N.Y. Sept. 19, 2017)
(alteration added). These facts favor denial. But Sanders correctly points out his
“inability to access New York State laws, codes[,] and regulations” and “NYS case
law sever[e]ly restricts [his] ability to present this case.” (Mot. to Appoint Counsel ¶
15, ECF No. 72 (alterations added).) While this factor may later tip the other way,
presently, it favors appointing counsel.
Complex legal issues. Fourth, the Court looks at if the case involves
complex legal issues. See Ledesma v. Garland, 850 F. App’x 84, 89 (2d Cir. 2021)
(holding that because “appeal raise[d] several issues that were both complex” and
meritorious, appointment of counsel was warranted) (alteration added); see also
Johnston v. Maha, 606 F.3d 39, 42 (2d Cir. 2010) (appointing counsel in part

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because “[t]he legal issues raised in this appeal are fairly complex.”) (alteration
added).
Sanders correctly points out that “[t]he Defendants include municipal and
corporate entities” and numerous individual defendants. (Mot. for Appointment of
Counsel at 5 ¶ 17, ECF No. 72 (alteration added).) During the Rule 16 conference,
he noted that his claims require “a significant amount of investigation into the
conditions … of his confinement.” Kelly v. Selsky, No. 00 CIV. 3919HBKNF, 2001
WL 69435, at *2 (S.D.N.Y. Jan. 26, 2001). Because “it is unlikely that” Sanders “can
perform the investigation himself,” this factor favors appointment of counsel. Id.
Just determination. Finally, the Court also asks if an attorney’s help would
increase the chances “of a just determination.” Here, an attorney’s assistance would
help ensure a just determination. Again, Sanders is not able to evaluate state law
claims on his own because of where he is incarcerated.
CONCLUSION
For the foregoing reasons, the Court DENIES Sanders’ request for initial
disclosures and GRANTS in part and DENIES in part his motion for appointment
of counsel.
Appointment of counsel. The Court will appoint pro bono counsel only for
the following purposes: (1) to consult with Sanders concerning a potential motion to
amend; (2) to analyze Sanders’ proposed amendments; and (3) if pro bono counsel
determines that Sanders’ proposed amendments have merit, pro bono counsel may
bring a motion to amend. Again, the Court does not comment on the merit of
Sanders’ need for pro bono counsel in discovery or for dispositive motions. Sanders
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may make a separate motion for appointment of counsel for these later stages of his
case. The Court will issue a separate order to effect its appointment of counsel.
Initial disclosures. Regarding Sanders’ request for initial disclosures: Even
if the Court lacks discretion to require Defendants to provide initial disclosures, the
Court still has discretion to afford a pro se prisoner Rule 26-style discovery. See
Ward, 2008 WL 1787753, at *3 (noting that “[t]he exemption only applies to
automatic disclosure; it does not act to prevent such information from ever being
exchanged”) (emphasis in original).
The Court accordingly invites Sanders to submit a request for additional
interrogatories, or other form of discovery, if he determines he needs them. When
the Court receives Sanders’ request, it will consider if, given the factors stated in
Rule 26(b)(1), additional interrogatories are warranted for Sanders. See Fed. R. Civ.
P. 33(a)(1) (“Leave to serve additional interrogatories may be granted to the extent
consistent with Rule 26(b)(1) and (2).”)
IT IS SO ORDERED.
Dated:

November 14, 2023
Rochester, NY

MARK W. PEDERSEN
United States Magistrate Judge

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