Opinion
08 Civ. 10141 (SHS) (KNF).
September 15, 2009
MEMORANDUM and ORDER
I. INTRODUCTION
Martel Bee ("Bee"), proceeding pro se and in forma pauperis, commenced this action, pursuant to 42 U.S.C. § 1983, alleging Corrections Officers Krupp ("Krupp"), Vanderhoof ("Vanderhoof'), Hounshell ("Hounshell"), and Rowley ("Rowley), as well as Sergeant Padgett ("Padgett") — all of whom are employees of the Fishkill Correctional Facility-violated his constitutional rights by calling him racially derogatory names, assaulting him physically, providing him unsanitary food and shower supplies, threatening him, denying him medical attention, and tampering with his mail. Bee requests that the Court appoint counsel to assist him, which application is addressed below.
II. BACKGROUND
In his complaint, Bee contends that, from August 10, 2008, through September 24, 2008, the defendants engaged in unconstitutional conduct. Bee maintains that Vanderhoof, Rowley, and Hounshell called Bee "a litt[le] Arab terrorist," "a dumb uni bomber," "Bin laden," "Osama," "sand nigger towelhea[d] fucker," and/or a "camel jockey." One morning, Hounshell delivered Bee's meal, "with visible globs of spit on the food" and refused to give Bee another meal when Bee complained. In addition, according to the complaint, on another day, Hounshell provided shower supplies to Bee, including a used razor that had hairs on it. Furthermore, Padgett, while making his rounds one night, entered Bee's cell, "threw plaintiff of[f] his bed . . ., head first in to the cell shower," and "began to choke [Bee] leaving plaintiff with litt[le] defense," and stated that, if Padgett were still a corrections officer, he would have "killed trash like [Bee]." Bee alleges Padgett told him to stop writing grievances, and that Padgett would "kill [Bee] next time I come in this cell." Bee also alleges that, after being attacked by Padgett, he was denied medical leave. Bee contends Krupp read Bee's mail aloud and appears to allege that Krupp then stated "`watch me do magic, hokus pokus,'" though it is not clear what occurred after Krupp is alleged to have made this statement.
Bee maintains he suffers from back pain and loss of hearing in his right ear, due to a "blow" from Padgett. In addition, Bee experiences emotional pain, mental anguish and depression, for which he takes medication. According to Bee, he has lost weight, because of his fear that his food has been tampered with, has migraine headaches, experiences panic attacks, has flashbacks that inhibit his ability to sleep, and has feared for his life on more than one occasion.
Bee requests that the Court appoint counsel to assist him in prosecuting this action and notes that: he requires assistance because he is housed in "segregation, making it extre[me]ly difficult to do legal research," and he is "randomly `denied' access to legal materials due to the fact that its known by the prison officials that [he is] pursuing a case against officials." Bee also contends he has been transferred to a new facility, which has impeded his efforts to represent himself, since he no longer has "the jailhouse access that [he] use[d] to." Bee maintains that he cannot comprehend legal procedures, and has made more than ten inquiries of prospective counsel, but no attorneys have agreed to represent him. Bee has submitted, to the court, letters from the Dutchess County Public Defender, Legal Services of the Hudson Valley, and Franzblau Dratch, P.C., all of which declined Bee's request for representation.
III. DISCUSSION
Unlike criminal defendants, prisoners, such as plaintiff, and indigents filing civil actions have no constitutional right to counsel. However, 28 U.S.C. § 1915(e)(1) provides that the Court may request an attorney to represent any person unable to afford counsel. Plaintiff made an application to proceed in forma pauperis, which was granted. Therefore, he is within the class to whom 28 U.S.C. § 1915(e)(1) applies.
"In deciding whether to appoint counsel, [a] district [court] should first determine whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986), cert. denied, 502 U.S. 986, 112 S. Ct. 596 (1991). This means that it appears to the court "from the face of the pleading[s]," (see Stewart v. McMickens, 677 F. Supp. 226, 228 [S.D.N.Y. 1988]), that the claim(s) asserted by the plaintiff may have some merit, or that the plaintiff "appears to have some chance of success. . . ." Hodge, 802 F.2d at 60-61. The pleadings drafted by a pro se litigant, such as Bee, are to be construed liberally and interpreted to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Where a plaintiff satisfies the threshold requirement of demonstrating that the plaintiff's position is likely to be of substance, the court should then consider: (1) the indigent's ability to investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact-finder; (3) the indigent's ability to present the case; (4) the complexity of the legal issues; and (5) any special reason in that case why appointment of counsel would be more likely to lead to a just determination. Hodge, 802 F.2d at 61-62.
Construing the plaintiff's complaint liberally, see Burgos, 14 F.3d at 790, the Court finds that Bee seeks to claim a violation of his Fourteenth Amendment rights, based upon the racially discriminatory names he was called. "The law is clear that verbal harassment or even threats alone are not actionable under 42 U.S.C. § 1983." Cotz v. Mastroeni, 476 F. Supp. 2d 332, 372 (S.D.N.Y. 2007) (citing case law involving a corrections officer harassing an inmate by, inter alia, directing racial epithets at him, and finding that such conduct does not rise to the level of a constitutional violation). Thus, Bee's discrimination claim, based upon being called racially insensitive names, does not appear to amount to a constitutional violation. In addition, Bee's allegations of verbal threats, without more, do not appear actionable under 42 U.S.C. § 1983. See id.
Bee claims that, on one occasion, Krupp read Bee's mail aloud, and, thereafter, may have done something to tamper with it. However, Bee does not identify whether this claim pertains to legal or other mail. In any event, "a prisoner's right to the free flow of incoming and outgoing mail is protected by the First Amendment." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). However, "an isolated incident of mail tampering is usually insufficient to establish a constitutional violation." Id. Instead, to support a First Amendment violation, an inmate must show that "prison officials `regularly and unjustifiably' interfered with his personal mail." DeLeon v. Doe, 361 F.3d 93, 94 (2d Cir. 2004); see also Davis, 320 F.3d at 351 (stating that a prisoner must also show that interference with incoming legal mail, by prison officials, was done "`regularly and unjustifiably.'") (citation omitted). Regardless of whether Krupp read Bee's legal or personal mail, Bee's complaint alleges there was a single incident during which Krupp opened and read one piece of Bee's mail, and that Krupp engaged in this activity in Bee's presence. These allegations appear to be insufficient to state a First Amendment violation. Id.
To the extent Bee may be asserting an Eighth Amendment claim, based upon his allegation that "visible globs of spit" were present in his food, "[t]he Eighth Amendment does require that prison officials serve prisoners nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it." Chavis v. Kienert, No. 03-CV-0039, 2005 WL 2452150, at *21 (N.D.N.Y. Sept. 30, 2005) (internal quotations and citations omitted). However, a plaintiff's allegation that "Defendants spit in his food and `violat[ed] [his] bread by making holes in it,'" without more, has been found insufficient to state an Eighth Amendment violation. Id. In addition, even when Bee's claim, that he was provided a used razor with a hair on it, is construed liberally, it does not appear to rise to the level of an Eighth Amendment violation. See Davidson v. Murray, 371 F. Supp. 2d 361, 372 (W.D.N.Y. 2005) (finding that an Eighth Amendment violation was not established, based upon conditions "amount[ing] to no more than occasional or temporary deprivations of personal hygiene items, with no . . . indicat[ion] that plaintiff suffered any `specific deprivation of a single human need' . . ., or other accompanying harm").
The Court construes Bee's claim that he was physically assaulted by Padgett, as falling within the purview of the Eighth Amendment. In order to prevail on an Eighth Amendment excessive force claim, made pursuant to 42 U.S.C. § 1983, Bee must show that: (1) objectively, the deprivation alleged is sufficiently serious to reach constitutional dimensions; and (2) subjectively, the defendants must have acted with a "sufficiently culpable state of mind" associated with the "unnecessary and wanton infliction of pain."Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977 (1994) (internal quotations and citations omitted); see Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993). Whether conduct is "wanton" depends on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically . . . [to] caus[e] harm." Hudson v. McMillian, 503 U.S. 1, 6, 112 S. Ct. 995, 998 (1992) (internal quotations and citations omitted).
Looking solely to the face of the pleadings, it appears that the plaintiff's Eighth Amendment excessive force claim may have merit. The plaintiff's factual allegations provide sufficient details to show that he suffered pain and injury-loss of hearing and back pain, resulting from being choked and struck-and, Padgett's actions do not appear to qualify as "force . . . applied in a good-faith effort to maintain or restore discipline," but, rather, appear to have been done "maliciously and sadistically . . . [t]o caus[e] harm." Hudson, 503 U.S. at 6, 112 S. Ct. at 998. Therefore, at this juncture, it appears that the plaintiff's Eighth Amendment claim, based on the use of force, may have merit.
Bee may also be raising a claim based on the denial of, or a delay in receiving, medical treatment for his injuries resulting from Padgett's alleged conduct. However, his complaint states only "plaintiff was also den[i]ed medical th[e] night [Padgett choked and struck him]." While the "Cruel and Unusual Punishment Clause of the Eighth Amendment imposes a duty upon prison officials to ensure that inmates receive adequate medical care," an inmate must show that the alleged deprivation of medical care was "sufficiently serious," and that prison officials acted with a "sufficiently culpable state of mind." Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006). Additionally, "[w]hen the basis for a prisoner's Eighth Amendment claim is a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay orinterruption in treatment rather than the prisoner's underlying medical condition alone in analyzing whether the alleged deprivation is, in `objective terms, sufficiently serious.'"Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (emphasis in original). The complaint, in its present form, provides insufficient information for the Court to analyze whether the delay in medical treatment violated the Eighth Amendment. See Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 308 (S.D.N.Y. 2001) ("Broad and conclusory statements, coupled with a failure to allege the facts of the alleged offending conduct, are insufficient to state a claim").
The Court has considered the various factors noted in Hodge, because the plaintiff has satisfied the threshold requirement of demonstrating that his Eighth Amendment claim, based upon the use of force against him, may have merit. In addition, the plaintiff's other Eighth Amendment claims-for unconstitutional delay in providing medical treatment and unsanitary food-could, with the assertion of additional supporting facts, have merit. Since the plaintiff has been transferred from Fishkill Correctional Facility to Southport Correctional Facility, he may experience difficulty investigating the facts surrounding his claims. The plaintiffs Eighth Amendment claim(s) presents complex issues involving the defendants' respective states of mind and whether the defendants' actions rose to the level of a constitutional deprivation. The record before the Court does not indicate the plaintiff possesses any particular knowledge or skill that would enable him to analyze or present these issues at a trial.
Having considered the factors outlined in Hodge, supra, the Court finds that appointment of counsel, in the circumstance of this case, would be reasonable and appropriate. Such an appointment would be more likely to lead to a just determination of the claims the plaintiff has made.
Accordingly, the plaintiff's application for the appointment of counsel, Dkt. Entry No. 5, is granted. The Pro Se Office for this judicial district is directed to request pro bono counsel for the plaintiff in accordance with the Pro Bono Panel's procedures. The plaintiff is advised that, unless pro bono counsel volunteers to represent him, he remains in pro se status and, accordingly, must continue to represent himself.
N.B. All unpublished decisions to which citation has been made are being provided to the plaintiff with a copy of this order.
SO ORDERED: