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applying Fed.R.Civ.P. 72 standard to motion for appointment of counsel
Summary of this case from Quiroz v. U.S. Bank National AssociationOpinion
No. 06-3818-pr.
December 2, 2008.
Appeal from the United States District Court for the Western District of New York (Charles J. Siragusa, District Judge; Jonathan Feldman, Magistrate Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court, entered on August 4, 2006, is hereby AFFIRMED.
SUBMITTING FOR APPELLANT: ANTHONY BENNETT, pro se.
SUBMITTING FOR APPELLEES: BARBARA D. UNDERWOOD (Nancy A. Spiegel and Robert M. Goldfarb, of counsel), for Andrew M. Cuomo, Attorney General of the State of New York, Albany, New York.
PRESENT: HONORABLE ROGER J. MINER, HONORABLE REENA RAGGI, HONORABLE DEBRA ANN LIVINGSTON, Circuit Judges.
Plaintiff Anthony Bennett, a New York State prison inmate, proceeding pro se, appeals from an award of summary judgment in favor of defendants on Bennett's complaint that he was subjected to unwarranted prison discipline in retaliation for filing an earlier federal lawsuit against prison officials.See 42 U.S.C. § 1983. In addition to challenging this award on the merits, Bennett faults the district court for refusing to assign him pro bono counsel. A denial of appointment of counsel is reviewed for abuse of discretion. Sears, Roebuck Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). A grant of summary judgment is reviewed de novo, and we will affirm only if the record, viewed in the light most favorable to the non-moving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986);Ollman v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 245 (2d Cir. 2008). We assume the parties' familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Denial of Motions to Appoint Counsel
Pursuant to Federal Rule of Civil Procedure 72(a), a party must object to a magistrate judge's decision on a nondispositive motion within ten days of service to preserve his challenge for appellate review. See Spence v. Md. Cas. Co., 995 F.2d 1147, 1155 (2d Cir. 1993). Bennett's compliance with Rule 72(a) is questionable because the magistrate judge last denied Bennett appointment of counsel on September 29, 2005,Bennett v. Goord, 03-CV-6577, order (W.D.N.Y. Sep. 29, 2005) ("September 29, 2005 order"), and Bennett did not file an objection with the district court until January 20, 2006, some three-and-a-half months after the entry of the order. Nevertheless, because the district court upheld the magistrate judge's denial on the merits, we proceed to consider that conclusion.
Like the district court, we identify no merit in Bennett's argument that the magistrate judge failed to consider the factors articulated in Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986), in declining to appoint counsel. The September 29, 2005 order discusses each of theHodge factors and concludes that Bennett's retaliation claim satisfied the threshold showing of merit.See September 29, 2005 order at 2-4. Nevertheless, the magistrate judge denied counsel based on Bennett's demonstrated ability to litigate his claims. See Hodge v. Police Officers, 802 F.2d at 61; see also In re Martin-Trigona, 737 F.2d 1254, 1260-61 (2d Cir. 1984) (refusal to appoint counsel upheld in light of pro se's experience in judicial proceedings). Because the magistrate judge applied the proper legal standards, we conclude that this determination fell well within the scope of his discretion.
2. Grant of Summary Judgment
Bennett argues that the district court erred in concluding that he failed to adduce evidence sufficient to convince a fact finder that officials at Groveland Correctional Facility ("Groveland") ordered Sheila Hoffman to write a false misbehavior report against him in retaliation for his litigation against Commissioner Glen Goord and other correctional staff.
On de novo review of the record, we conclude, as the district court did, that, as a matter of law, Bennett cannot establish that retaliation was a substantial factor for the misbehavior report. See Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002). There is no evidence demonstrating that Hoffman, who wrote the report, knew of Bennett's lawsuit against prison officials or that she was acting at the direction of someone who did. Bennett states conclusorily that legal files were mailed to him at Groveland, which "have codes and materials in it that alerts [prison officials] to [his] litigation." Pl. Mem. at 10. But Bennett's assertion that defendants may have known about his litigation based on the fact that he received legal mail at Groveland is speculative and thus insufficient to defeat a motion for summary judgment. See McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n. 4 (2d Cir. 2006) ("speculation alone is insufficient to defeat a motion for summary judgment"); see also Woodman v. WWOR-TV, Inc., 411 F.3d 69, 90 (2d Cir. 2005) (holding that, in age discrimination case, allegations of defendant's knowledge of protected ground must be supported by evidence to avoid summary judgment).
Bennett's retaliation claim also fails because defendants offered uncontroverted evidence that they would have taken the challenged disciplinary action even in the absence of the protected conduct. See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) ("[I]f taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone."). While two of the three charges alleged in the misbehavior report were later dismissed, the charge that Bennett had threatened Hoffman was sustained on appeal, and Bennett does not dispute that he made the threatening statement on which the charge was based. We thus conclude that the retaliation claim was correctly dismissed on summary judgment.
3. New Claims on Appeal
Bennett raises two due process claims for the first time on appeal. He argues that (1) he did not receive an impartial hearing during his appeal of the guilty findings on the charges alleged in the misbehavior report, and (2) conditions at the Special Housing Unit where he was sent as punishment posed an "atypical and significant hardship," thereby depriving him of his due process liberty interest. Pl. Mem. at 8 (quotingSandin v. Conner, 515 U.S. 472, 484 (1995)). "A party may not raise claims on appeal which it failed to raise before the trial court unless manifest injustice will result."Madrigal Audio Labs., Inc. v. Cello, Ltd., 799 F.2d 814, 820 (2d Cir. 1986) (internal quotation marks and citations omitted). We find no manifest injustice in dismissing these claims, particularly where the appeal implicates factual and legal questions that "could have been exposed and distilled by the able district judge so as to facilitate more informed consideration by this court." Terkildsen v. Waters, 481 F.2d 201, 205 (2d Cir. 1973).
4. Motion to Appoint Appellate Counsel
To the extent Bennett moves for appointment of appellate counsel, that motion is denied because his claims on appeal are patently without merit.
For the foregoing reasons, this Court AFFIRMS the interlocutory orders denying the appointment of counsel, AFFIRMS the summary judgment of dismissal of Bennett's retaliation claim, DISMISSES the due process claims raised for the first time on appeal, and DENIES the motion for appointment of appellate counsel.