Opinion
No. 01 Civ. 5716 (RJH) (RLE).
March 29, 2005
MEMORANDUM OPINION AND ORDER
On July 30, 2001, pro se incarcerated plaintiff, Johnnie Bunting ("Bunting"), filed this action against defendant Nagy pursuant to 42 U.S.C. § 1983, alleging due process violations under the Fourteenth Amendment with respect to Bunting's disciplinary hearing. Bunting filed a motion for appointment of counsel on March 5, 2004, and filed a memorandum of law in support of his motion on February 14, 2005. For the reasons set forth below, Bunting's motion is GRANTED.
I. BACKGROUND
On July 24, 1988, while an inmate at the Green Haven Correctional Facility, Bunting was served an inmate misbehavior report charging him with making threats, refusing to obey a direct order, and interfering with an employee. Amd. Compl. at ¶ 1. A Tier II disciplinary hearing was commenced on July 28, 1998, where defendant Nagy, a corrections lieutenant, served as the hearing officer. Id. at ¶ 2. For reasons Bunting does not specify in his amended complaint or in his applications to request appointment of counsel, the disciplinary hearing was adjourned to August 9, 1998. See id. at ¶¶ 5, 11. At the hearing, Bunting testified that the corrections officer who authored the misbehavior report misidentified him as the inmate who made the infractions, as Bunting had been taken to the Green Haven Facility hospital for emergency sick call during the time the alleged incidences occurred. Id. at ¶¶ 3-4. Bunting claims his defense "was uncontroverted by any credible testimony or documentary evidence," and that Nagy made several procedural due process violations when he 1) failed to conduct the hearing in a timely manner, in violation of 7 N.Y.C.R.R. § 251-5.1(b); 2) asked witnesses questions that Bunting did not request be asked; 3) spoke to witnesses off the record; 4) ignored procedural violations; and 5) imposed an "overly severe" disciplinary sentence, in violation of 7 N.Y.C.R.R. § 250.2(d). Id. at ¶¶ 5-6. In addition, Bunting alleges that Nagy's decision was unsupported by the proper evidentiary standard of proof, and was "infirm" because the Department of Corrections failed to comply with its own rules and regulations. Id. at ¶¶ 7-8.Bunting was found guilty of the charges outlined in the inmate misbehavior report, and sentenced to thirty days keeplock and loss of packages, commissary, and telephone privileges. Amd. Compl. at ¶ 9. This sentence was added to a suspended disciplinary sanction, which previously had been imposed upon Bunting following a Tier III disciplinary hearing on an unrelated charge. Id. at ¶ 9. The prior sanction consisted of ninety-one days keeplock and loss of packages, commissary, and telephone privileges. Therefore, Bunting's total disciplinary sanction consisted of 121 days of keeplock and loss of privileges. Id.
Bunting appealed Nagy's August 9, 1998 decision, which was affirmed by the Deputy Superintendent of Security at Green Haven on August 13, 1998. Id. at ¶ 10. An Article 78 proceeding was commenced in New York State court, challenging the Deputy Superintendent's decision. Id. at ¶ 11. Before the disposition of the Article 78 proceeding, R. Morton, the Acting Deputy Superintendent of Security at Green Haven, reversed and expunged Nagy's determination. Id. However, it appears that by the time the reversal and expungement was decided, Bunting had already served the 121 days of confinement. See id. at ¶ 14. Bunting claims that during his confinement he was denied educational and work incentive programs which were available for the general population, and he was deprived of wages offered for participating in those programs. Id.
II. DISCUSSION
Civil litigants, unlike criminal defendants, do not have a constitutional right to the appointment of counsel. However, under 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." The Court of Appeals for the Second Circuit has articulated the factors that a court should consider in deciding whether to appoint counsel for an indigent civil litigant. The court "exercises substantial discretion, subject to the requirement that it be guided by sound legal principles." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) ( citing Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983) (internal quotations omitted)). The court's first inquiry is whether plaintiff can afford to obtain counsel. See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). If the court finds that a plaintiff cannot afford counsel, it must then examine the merits of the case and "determine whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). To make such determination, the court must decide whether, "from the face of the pleading," the claims asserted by the plaintiff "may have merit," or whether the plaintiff "appears to have some chance of success." Baskerville v. Goord, 2001 WL 527479, at *1 (S.D.N.Y. May 16, 2001) (internal citations omitted).Once an initial determination has been made as to indigence and merit, the court has discretion to consider the following factors: (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 why appointment of counsel would be more likely to lead to a just determination. Hodge at 61-62. None of these factors are controlling; the court must examine each case on its own facts. Id. at 61.
Here, the two threshold requirements are satisfied. Bunting's indigence is demonstrated insofar as his request to proceed in forma pauperis was granted on June 22, 2001, and the record demonstrates that Bunting's position is likely to be of substance. Bunting alleges that his due process rights under the Fourteenth Amendment were violated when Nagy adjourned his disciplinary hearing untimely and failed to complete the hearing pursuant to 7 N.Y.C.R.R. § 251-5.1(b). In cases of inmate misbehavior, a disciplinary hearing must be completed within fourteen (14) days following issuance of the misbehavior report unless otherwise authorized. 7 N.Y.C.R.R. § 251-5.1(b). Bunting claims his disciplinary hearing was not completed timely. In addition, Bunting alleges Nagy deprived him of a fair and impartial hearing, and unlawfully imposed a sanction of 121 days keep-lock and loss of privileges. Bunting's complaint suggests that his claims may have merit.
In consideration of the other Hodge factors, the Court finds that appointment of counsel is appropriate. While this case does not present complex legal issues, it does involve substantial, contested factual allegations that will have to be explored and resolved. Thus, the case calls for someone who is skilled at adequately investigating the allegations and examining witnesses during discovery and at trial. Nothing in the record suggests Bunting has these skills or opportunity. Currently an inmate at Wende Correctional Facility, rather than at Green Haven, Bunting is unable to investigate the facts, and he is unable to locate inmates who were present at the time of the alleged infractions, or who were witnesses at the disciplinary hearing. These circumstances weigh in favor of appointing counsel.
III. CONCLUSION
For the foregoing reasons, Bunting's motion is GRANTED. This case shall be added to the Pro Bono Panel list to secure a volunteer attorney, and any questions regarding status of the request for counsel shall be addressed to the Pro Se office.