Opinion
19-CV-10365 (ALC)
12-05-2019
LANCE MILES FUNDERBURK, Plaintiff, v. C.O. "JOHN" BARONNETT, #7739; C.O. "JOHN" SMITH, #6078; DR. "JOHN" CHARLES, Defendants.
ORDER OF SERVICE ANDREW L. CARTER, JR., United States District Judge :
Plaintiff, currently incarcerated at Clinton Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights. Plaintiff prepaid the $400.00 in filing fees to bring this action.
STANDARD OF REVIEW
The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed, R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
DISCUSSION
A. Service on Correction Officers Baronnette and Smith
The Clerk of Court is directed to electronically notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that Defendants Correction Officer Baronnette, #7739, and Correction Officer Smith, #6078, waive service of summons.
B. Service on Defendant "Charles"
Under Valentin v, Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies sufficient information to permit the New York City Department of Correction (DOC) to identify the medical employee at MDC with the last name "Charles," who saw Plaintiff on February 8, 2019. It is therefore ordered that the New York City Law Department, which is the attorney for and agent of the DOC, must ascertain the full name for Defendant Charles, whom Plaintiff seeks to sue here, and the address where the defendant may be served. The New York City Law Department must provide this information to Plaintiff and the Court within sixty days of the date of this order.
If the Doe defendant is a current or former DOC employee or official, the New York City Law Department should note in the response to this order that an electronic request for a waiver of service can be made under the e-service agreement for cases involving DOC defendants. If the Doe defendant is not a current or former DOC employee or official, but otherwise works or worked at a DOC facility, the New York City Law Department must provide a residential address where the individual may be served.
Within thirty days after receiving this information, Plaintiff must file an amended complaint with the full name of the defendant. The amended complaint will replace, not supplement, the original complaint. An amended complaint form for Plaintiff to complete after receiving this information is attached to this order. Once Plaintiff has filed an amended complaint, the Court will screen the amended complaint and, if necessary, issue an order directing the Clerk of Court to issue a summons for this Defendant.
C. Local Civil Rule 33.2
Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to this action. Those discovery requests are available on the Court's website under "Forms" and are titled "Plaintiff's Local Civil Rule 33.2 Interrogatories and Requests for Production of Documents." Within 120 days of service of the complaint, Defendants must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim.
If Plaintiff would like copies of these discovery requests before receiving the responses and does not have access to the website, Plaintiff may request them from the Pro Se Intake Unit.
D. Request for Pro Bono Counsel
Plaintiff requests pro bono counsel. Under the IFP statute, a court has no authority to "appoint" counsel in a civil action but instead, may only "request" that an attorney volunteer to represent a litigant. Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 301-310 (1989). Courts must therefore grant applications for pro bono counsel sparingly, and with reference to public benefit, in order to preserve the "precious commodity" of volunteer-lawyer time. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir. 1989).
The factors to be considered in ruling on an indigent litigant's request for counsel include the merits of the case, Plaintiff's efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. Id. at 172; Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are "[t]he factor which command[s] the most attention." Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff's motion for counsel is denied without prejudice to renewal at a later date.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. An "Amended Civil Rights Complaint" form is attached to this order.
The Court denies Plaintiff's request for pro bono counsel, without prejudice to renewal of the application. Local Civil Rule 33.2 applies to this action.
The Clerk of Court is directed to electronically notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that Defendants Correction Officer Baronnette, #7739, and Correction Officer Smith, #6078, waive service of summons.
The Clerk of Court is further directed to mail a copy of this order and the complaint to the New York City Law Department at: 100 Church Street New York, NY 10007.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
Dated: December 5, 2019
New York, New York
/s/ _________
ANDREW L. CARTER, JR.
United States District Judge