Opinion
00 CV 3723.
December 27, 2000.
Opinion and Order
Plaintiff pro se Andrew Gasper ("Plaintiff"), an inmate at the Otisville Correctional Facility, brought this action against Dr. Sarrack, Health Service Director of the Otisville Correctional Facility, and Ernest Edwards, Superintendent of the Otisville Correctional Facility ("Defendants") under Title 42 of the United States Code, Section 1983, alleging violation of his civil rights. On May 16, 2000, Chief Judge Michael B. Mukasey granted Plaintiff's application to proceed in forma pauperis. On May 17, 2000, Plaintiff filed a motion for appointment of counsel. For the reasons set forth below, Plaintiff's motion is denied.
Pursuant to Title 28 of the United States Code, Section 1915(d), a district judge has the authority to appoint counsel for indigents in civil cases. Section 1915(d) provides that a "court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." Section 1915(d) guarantees indigents "meaningful access" to the courts, which is protected by the United States Constitution, however, there is no constitutional right to appointed counsel in civil cases. Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986). A district court has broad discretion in deciding whether to appoint counsel, Miller v. Pleasure, 296 F.2d 283, 284 (2d Cir. 1961), cert. denied, 370 U.S. 964 (1962), and must exercise such discretion in accordance with sound legal principles. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975).
The Second Circuit set forth the factors a court should consider when determining whether to grant an indigent pro se plaintiff's request for counsel. As a threshold matter, the court must decide whether the indigent's claim seems likely to be of substance. Hodge, 802 F.2d at 61-62. Mere bald assertions by an indigent, which may be sufficient to place facts in issue for the purposes of a summary judgment motion, are insufficient to demonstrate that a claim is likely to be of substance. Id. at 60. If the court determines that the indigent's claim is likely to be of substance, it should consider such factors as:
the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.Id. When considering such factors, courts should neither apply bright-line rules nor automatically deny appointment of counsel until the applicant has survived a dispositive motion. See Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997).
Here, Plaintiff claims that he has prostate cancer and that the side effects of his cancer treatment medication, Lupron, leaves him fatigued and in pain, making it difficult to walk around the facility. He alleges that he was denied a bus pass to travel at the correctional facility from the visiting groom, to the veterans meeting room, to the law library and to the commensary. Plaintiff claims that he is covered by the Americans with Disabilities Act and is entitled to a bus pass. Plaintiff filed a grievance on this issue on September 14, 1999, in which he stated that
Grievant is being deprived and discriminated against to the medical dept. bus pass services/arrangements by Otisville medical dept., even though he is receiving prostate cancer treatments (CHB) which covers him by the Americans with Disabilities Act (ADA) Civil Rights Act, and The United States Supreme Court (J. Scalia) cited as, 118 S.Ct. 1952 (1998) see, attached information and laws.
On September 30, 1999 Superintendent Ernest Edwards responded that "Grievant's (sic) are to follow sick call procedure and obtain a doctors (sic) appointment to discuss their medical concerns for a bus pass." Plaintiff appealed, arguing that "the Superintendent . . . is in error, due to the fact that on 9-13-99, Dr. Sarrack denied me a bus pass from a sick call-appearance appointment with him." The Inmate Grievance Program Central Office Review Committee unanimously denied Plaintiff's request on 11/10/99, stating that
Upon full hearing of the facts and circumstances in the instant case, and upon recommendation of the Division of Health Services, the action requested herein is hereby denied. CORC concurs with the Superintendent and notes from the instant investigation that the grievant has not been authorized a bus pass by the facility doctor. In regard to the grievant's appeal, CORC asserts that, consistent with Health Services Policy Manual Item #1.21 — Health Care Referrals, the Facility Health Services Directors (FHSDs) have the sole responsibility for providing treatment to the inmates under their care. The FHSDs have the responsibility of determining what outside health referrals are needed by the target population. Outside specialists may only make recommendations for treatment; however, the implementation of those recommendations is at the discretion of the FHSDs, based on their professional judgment.
On October 27, 1999, Plaintiff wrote to Superintendent Edwards appealing the decision denying him a bus pass. The superintendent responded on November 10, 1999, answering that Plaintiff should put in a sick call request and be evaluated by the Medical Unit. Plaintiff then wrote a letter on November 12, 1999 to Elliot Spitzer, New York State Attorney General, requesting assistance. Although Plaintiff alleges that he visited the doctor, nowhere in the record does Plaintiff demonstrate that, following his receipt of the November 10, 1999 letter, he complied with the response from the superintendent's office indicating that he should put in a formal sick call request to address this issue and be evaluated through the appropriate channels.
The Court has reviewed Plaintiff's declaration of financial worth, and finds that Plaintiff qualifies as indigent underHodge. The Court also has reviewed Plaintiff's claims and all materials submitted in connection with this case and Plaintiff's request for counsel. The Court finds, in the exercise of its sound discretion, that Plaintiff's claims are not "likely to be of substance," and therefore, do not meet the threshold requirement for appointment of counsel under Hodge.
Accordingly, for the above reasons, Plaintiff's application for the appointment of counsel is DENIED.
SO ORDERED: