Opinion
6:17-CV-06456 EAW
2023-04-10
Perry GRIGGS, Plaintiff, v. R. SCHMAUSS, DDS, Defendant.
Perry Griggs, Attica, NY, Pro Se. Michele Romance Crain, New York State Attorney General's Office Department of Law, Rochester, NY, for Defendant.
Perry Griggs, Attica, NY, Pro Se. Michele Romance Crain, New York State Attorney General's Office Department of Law, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
Pro se plaintiff Perry Griggs ("Plaintiff"), an inmate confined at the Attica Correctional Facility, alleges a claim of deliberate indifference to his serious medical needs against defendant R. Schmauss, DDS ("Defendant"). (Dkt. 12). Presently pending before the Court is Plaintiff's motion seeking appointment of counsel to assist him in opposing the pending motion for summary judgment filed by Defendant. (Dkt. 58).
For the following reasons, Plaintiff's motion is denied without prejudice. Plaintiff must respond to Defendant's motion for summary judgment (Dkt. 55) on or before May 10, 2023. Defendant shall file any reply on or before May 24, 2023.
BACKGROUND
On December 7, 2022, Defendant filed a motion for summary judgment. (Dkt. 55). The Court issued a scheduling order setting response and reply deadlines of January 9, 2023, and January 23, 2023. (Dkt. 56).
On December 21, 2022, Plaintiff filed a memorandum, enclosing "evidence of [his] mental condition" and arguing that it would "be unfair to allow [him] to continue this case alone without counsel." (Dkt. 57 at 1-2). Plaintiff stated that he previously received assistance with filing papers from prison law clerks, whom he paid in cigarettes, but that he could no longer do so. (Id. at 1). In support of his claim that he has a mental condition rendering him unable to investigate his claims and understand court papers, Plaintiff submits an "Intelligence Evaluation" dated July 20, 2009 (id. at 3-6), wherein a licensed psychologist opined that Plaintiff has borderline to deficient mental functioning, but that he can otherwise follow and understand simple directions and instructions, perform simple tasks independently, maintain attention and concentration, maintain a regular schedule, learn new tasks, perform complex tasks independently, generally make appropriate decisions, relate adequately with others, and deal appropriately with stress (id. at 5). The psychologist noted that, due to Plaintiff's intellectual functioning, he may need some additional repetition when learning new tasks and performing complex tasks independently. (Id.). Thereafter, on January 17, 2023, Plaintiff filed the instant motion to appoint counsel (Dkt. 58), again stating that he did not understand how to oppose Defendant's motion for summary judgment, as well as requesting that he be afforded the opportunity to depose another individual named Robert Moore.
Plaintiff previously filed a motion for appointment of counsel on May 5, 2022 (Dkt. 44), which was denied by Judge Payson on June 17, 2022 (Dkt. 48). Among other things, Judge Payson found that Plaintiff had not established a likelihood of success on the merits, that the legal issues did not appear to be complex, and that Plaintiff's conduct in prosecuting his case "strongly suggest[ed] that he is capable of understanding and handling the litigation, contrary to his claims in the pending motion." (Id. at 3).
DISCUSSION
"Civil litigants, unlike criminal defendants, do not have a constitutional right to the appointment of counsel." Foggie ex rel. Geronimo v. Comm'r of Soc. Sec., 243 F. Supp. 2d 2, 4 (S.D.N.Y. 2003). Nonetheless, under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants when the circumstances so warrant. Sears, Roebuck & Co. v. Charles Sears Real Estate, Inc., 865 F.2d 22, 23-24 (2d Cir. 1988). The assignment of pro bono counsel in civil cases falls within the trial court's discretion. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984).
In exercising this discretion, a court must keep in mind that there are "many reasons" for why it "should not grant such applications indiscriminately. Volunteer lawyer time is a precious commodity." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). Indeed, "[t]here are far more pro se cases in this district than there are attorneys to represent the litigants." Fields v. McNaughton, No. 15-CV-6298-FPG-JWF, 2018 WL 4608201, at *1 (W.D.N.Y. Sept. 25, 2018). "The Court must consider carefully the issue of appointment of counsel because 'every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause.' " Boyd v. Petralis, No. 16-CV-6286W, 2017 WL 4533649, at *1 (W.D.N.Y. Oct. 10, 2017) (quoting Cooper, 877 F.2d at 172).
Accordingly, "[i]n evaluating a pro se litigant's request for appointment of counsel the Second Circuit require[s] the court to consider first whether the indigent's position appears likely to be one of substance . . . ." Davidson v. Goord, 259 F. Supp. 2d 236, 237 (W.D.N.Y. 2002) (citing Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001)); see also Cooper, 877 F.2d at 174 (noting the "threshold showing of some likelihood of merit").
Only after an initial finding that a claim is likely one of substance, will we consider secondary factors such as the factual and legal complexity of the case, the ability of the litigant to navigate the legal minefield unassisted, and any other reason why in the particular case appointment of counsel would more probably lead to a just resolution of the dispute.Carmona, 243 F.3d at 632 (citing Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)).
Additionally, for prison inmates, the court should give weight to the plaintiff's lack of practical access to attorneys. See Cooper, 877 F.2d at 173-74. Here, Plaintiff contends that he has been unsuccessful in his attempts to find an attorney. (See Dkt. 57 at 1 ("I wrote to get help from an attorney but none wrote me back.")). However, this, in itself, is insufficient to warrant the appointment of counsel. Rather, all of the factors should be considered both non-dispositive and non-exclusive; "[e]ach case must be decided on its own facts." Hodge, 802 F.2d at 61.
Plaintiff was in prison when he filed the complaint (see Dkt. 1), and he remains in custody. Plaintiff was previously granted leave to proceed in forma pauperis. (Dkt. 4). He has conclusively shown that he is indigent, and has met the threshold test for appointing counsel. However, on balance, the above-referenced factors weigh against appointing counsel at this stage of the proceedings.
Turning to the first—and threshold—consideration, Plaintiff's case does not appear to be "one of substance," and Plaintiff has failed to show some likelihood of merit. Plaintiff alleges that Defendant conducted a dental examination on December 4, 2014, and determined that Plaintiff needed four dental fillings, but that only one filling was performed by Defendant at that time. (Dkt. 12 at 5). Plaintiff further alleges that Defendant stated at that time that he would make sure Plaintiff did not receive his fillings "until hell freeze[s] over." (Id.). Defendant has denied Plaintiff's allegations (see Dkt. 35 (Defendant's Answer)), and therefore Plaintiff's likelihood of success likely will hinge on the trier's impression of the evidence. See Marcy Playground, Inc. v. Capitol Records, Inc., 6 F. Supp. 2d 277, 283 n.21 (S.D.N.Y. 1998) ("While the existence of factual disputes does not require the conclusion that a movant lacks a strong likelihood of success on the merits, it certainly is relevant."). Although discovery has been conducted in this case, Plaintiff has failed to submit any response to the pending motion for summary judgment or any evidence in support of his claims with respect to the pending motion for appointment of counsel. Therefore all the Court has before it is Defendant's evidence in support of his motion for summary judgment and in defense to Plaintiff's claim, which raises legitimate issues as to whether Plaintiff exhausted his administrative remedies before pursuing this action and whether Plaintiff has evidence to support his claim. Accordingly, Plaintiff has failed to demonstrate a likelihood of success with respect to his claim for denial of medical treatment. See Phelan v. Sullivan, 541 F. App'x 21, 25 (2d Cir. 2013) ("The district court also properly denied Phelan's motion for appointment of counsel after concluding that Phelan had not demonstrated that his claims were likely to succeed on the merits.").
Even if the Court concluded that Plaintiff's claim was one of substance, the balance of the factors weigh in favor of denying appointment of counsel at this juncture. Plaintiff's case does not appear to be complex from either a factual or legal perspective. Plaintiff's case is against one defendant and, as explained above, consists of a single claim for denial of medical treatment on December 4, 2014, when Defendant allegedly refused to fill certain cavities in Plaintiff's teeth. (See Dkt. 12); Ramey v. Dep't of Corrs., No. 13 Civ. 17(CM), 2013 WL 1867342, at *1-2 (S.D.N.Y. May 2, 2013) (plaintiff's claims alleging that the defendants failed to provide proper medical treatment were "not so complex or unique that a person of his intelligence would be unable to handle them at this stage"); Wilson v. Hendel, No. 00-CV-6458-CJS( ), 2011 WL 4703117, at *3 (W.D.N.Y. Oct. 4, 2011) (the plaintiff's claims for assault and for failure to provide adequate medical attention were "not complex," and the legal issues were "straight forward and capable of easy understanding without legal training"); Bain v. Cotton, No. 2:06 CV 217, 2009 WL 1660051, at *9 (D. Vt. June 12, 2009) (explaining that the facts of the plaintiff's case, which centered "on specific contacts with a few prison health care providers," were "common in the prison setting," and the court saw "no special complexities, either legal or factual, that entitle [the plaintiff] to appointed counsel"). "In contrast, cases where courts have found that this criteria weighed toward the appointment of counsel have involved legal issues that were complex or novel." Justice v. Kuhnapfel, 982 F. Supp. 2d 233, 236 (E.D.N.Y. 2013). Because the Court concludes that Plaintiff's claims are not complex or novel, this factor does not weigh in favor of appointing counsel.
Defendant's Motion for Summary Judgment also notes that Plaintiff received dental care from Defendant on March 24, 2016 (see Dkt. 55-4 at 12), but Plaintiff's amended complaint (Dkt. 12) does not include any allegation with respect to dental treatment he received from Defendant on that date.
Further, Plaintiff has demonstrated the ability to understand and handle the litigation. Plaintiff has been litigating this case since July 2017. (Dkt. 1). He has submitted multiple amended complaints (Dkt. 5; Dkt. 12) and filed various motions (see, e.g., Dkt. 8; Dkt. 10; Dkt. 19; Dkt. 44), including a motion wherein he successfully sought reconsideration of a Decision and Order dismissing the complaint against Defendant (Dkt. 10; Dkt. 11). In his filing in support of his motion to appoint counsel, Plaintiff accurately recites the law with respect to his claim, and cites to case law, from which the Court concludes that he understands his claim. (See Dkt. 58 at 1-2). Given Plaintiff's history of prosecuting his claims up to this point, the Court finds that he has adequately demonstrated the ability to understand and handle the litigation. See Fowler v. Fischer, 13-CV-6546-FPG-JWF, 2017 WL 1194377, at *3 (W.D.N.Y. Mar. 30, 2017) (denying appointment of counsel where the "plaintiff appear[ed] sufficiently knowledgeable and equipped to understand and handle the litigation"); Castro v. Manhattan E. Suite Hotel, 279 F. Supp. 2d 356, 358 (S.D.N.Y. 2003) (denying appointment of counsel where "the case does not present novel or overly complex legal issues, and there is no indication that [the plaintiff] lacks the ability to present his case").
Plaintiff contends that he has a mental impairment and has previously received assistance with his filings from prison law clerks, but he is no longer receiving assistance from the law clerks because he cannot pay them. In support of his contention that he is not capable of pursuing his claims due to his mental condition, Plaintiff submits the aforementioned Intelligence Evaluation. The evaluation was completed in 2009, making it almost 14 years old and of limited utility to the Court in considering Plaintiff's ability to understand and handle the litigation. Further, the Court does not find that the evaluation supports Plaintiff's claim that he requires counsel. Rather, the evaluation indicates that Plaintiff has the mental capacity to understand his claim and Defendant's arguments in opposition thereto, including because the psychologist opined that Plaintiff can follow and understand simple directions and instructions, perform simple tasks independently, maintain attention and concentration, make appropriate decisions, and deal appropriately with stress. In other words, although Plaintiff contends that he suffers from mental health impairments, he has failed to demonstrate that these impairments limit his ability to understand and handle the litigation, and his assertions of mental health conditions "standing alone, d[o] not warrant appointment of counsel." Murray v. Queeno, No. 17-CV-6279CJS, 2019 WL 1856262, at *2 (W.D.N.Y. Apr. 24, 2019) (the plaintiff's assertion that he was taking mental health medication for a variety of serious mental health conditions did not require appointment of counsel); see also Perez v. Cnty. of Monroe, No. 10-CV-6216, 2012 WL 4052470, at *1-2 (W.D.N.Y. Sept. 13, 2012) (denying without prejudice motion to appoint counsel where the plaintiff stated that he suffered from mental health disabilities, lacked knowledge of the law, and had short and long term memory problems, including because the plaintiff's pro se complaint was clear and coherent, and "[g]iven the limited resources available with respect to pro bono counsel, I find no 'special reason' why appointment of counsel at this stage would be more likely to lead to a just determination"); Lewis v. Turco, No. 08-CV-0913, 2010 WL 2287509, at *1 W.D.N.Y. (June 1, 2010) (despite the plaintiff's claims that he had "an extensive mental health treatment record and is currently receiving 'phycotropic [sic] medication . . . which will render him incompetent, to concentrate, and to be fully alert, and aware of legal proceedings,' " concluding that the plaintiff's prior participation in his case demonstrated that he was "capable of articulating his claim").
Plaintiff does not present any other reason why appointment of counsel would lead to a more just resolution of the dispute, at least at this stage of the proceedings. For those reasons, Plaintiff's motion for appointment of counsel is denied without prejudice. Should Plaintiff's claim survive summary judgment, he may renew his motion for appointment of counsel to assist him during the course of any trial.
Plaintiff's request that he be permitted to depose Robert Moore is also denied. This case has been pending since July 2017, and discovery was completed on May 23, 2022. (See Dkt. 43). Plaintiff has failed to articulate any reason as to why he did not seek to conduct Moore's deposition before the close of discovery. Accordingly, Plaintiff has failed to show good cause as to why the Court should reopen discovery.
CONCLUSION
For the foregoing reasons, Plaintiff's motion to appoint counsel (Dkt. 58) is denied without prejudice. Plaintiff shall respond to Defendant's motion for summary judgment (Dkt. 55) on or before May 10, 2023. Defendant shall file any reply on or before May 24, 2023. As the Court previously advised Plaintiff in the scheduling order issued on December 8, 2022 (Dkt. 56), Defendant has asked the Court to decide this case without a trial, based on written materials, including affidavits or declarations, submitted in support of the motion. THE CLAIMS PLAINTIFF ASSERTS IN HIS COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF HE DOES NOT RESPOND TO THE MOTION by filing his own sworn affidavits and other papers as required by Fed. R. Civ. P. 56(c). An affidavit is a sworn statement of fact based on personal knowledge that would be admissible in evidence at trial.
In short, Fed. R. Civ. P. 56 provides that a plaintiff may NOT oppose summary judgment simply by relying upon the allegations in the complaint. Rather, a plaintiff must submit evidence, such as witness statements or documents, countering the facts asserted and raising issues of fact for trial. Any witness statements, which may include Plaintiff's own statements, must be in the form of sworn affidavits (or declarations).
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 and 56 of the Local Rules of Civil Procedure for the Western District of New York, Plaintiff is required to submit the following papers in opposition to Defendant's 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 material facts as to which Plaintiff contends there exists a genuine issue to be tried. 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. If Plaintiff has any questions, he may direct them to the Pro Se Office.
SO ORDERED.