Opinion
No. 02 Civ. 1179 (RCC)(KNF)
July 23, 2002
MEMORANDUM and ORDER
Romualdo Gonzalez, pro se plaintiff, filed this action on February 14, 2002, pursuant to 42 U.S.C. § 1983. He alleges that on April 13, 1999, while he was a pretrial detainee at the Manhattan Detention Complex ("MDC"), a facility operated by the New York City Corrections Department, he was handcuffed by corrections personnel and assaulted by defendant Hollie, a corrections captain, and defendants Frazier and Wright, who are corrections officers. Plaintiff maintains that during the assault, he was punched and kicked in the face, groin and back, resulting in the loss of one testicle, a fractured right eye socket, a fractured nose and a fractured ankle; furthermore, plaintiff contends that he received injuries to his back. Plaintiff also contends, that as a result of the assault, he endured significant pain and discomfort.
On October 19, 1999, plaintiff alleges, he questioned the propriety of a strip search which defendant Corrections Deputy Warden James P. Barry ordered. Plaintiff contends that, as a result, an electric stun shield was applied to him; it rendered him unconscious. Plaintiff maintains that, while in that state, he received a permanent injury to his right and left hand nerve muscles, a fractured left ankle and numerous bruises and abrasions to his arms, legs and torso. Furthermore, plaintiff contends that defendants Jorge Ocasio (MDC Warden), and Barry caused his law library access privileges, his recreation time and his ability to communicate via telephone with his attorney to be terminated. Plaintiff also alleges that, on or about November 25, 2000, defendant Corrections Officer Rios intentionally bumped into him twice, while plaintiff was handling hot food trays, and when plaintiff protested, Officer Rios punched him several times about the face. Plaintiff contends that this assault resulted in a cut above plaintiffs right eye.
Plaintiff alleges that on or about November 26, 2000, defendant Corrections Captain Gonzalez approached his cell, kicked on the door and ordered plaintiff to prepare for an inspection. Plaintiff recalls that when he objected to the manner in which defendant Corrections Captain Gonzalez addressed him when ordering that he prepare for a search, he and other detainees were hit with an electric shield and beaten with batons. Plaintiff alleges that, as a result of this incident, he suffered an additional injury to his left ankle, which made it difficult for him to walk for five to six days.
Plaintiff maintains that the assaults, allegedly perpetrated upon him, were part of a pattern and practice of the City of New York to condone the excessive use of force by its corrections personnel and that the defendant City of New York's long-standing failure or refusal to manage its corrections personnel, appropriately, constitutes a policy or custom of "tolerating and authorizing physical abuse of inmates." Plaintiff contends that this policy resulted in the deprivation of his First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendment rights. Accordingly, through the instant action, he seeks to recover damages.
On July 15, 2002, plaintiff made an application to the Court that counsel be appointed to represent him in connection with the instant action. Plaintiffs application for appointment of counsel is addressed below.
Unlike criminal defendants, prisoners, such as plaintiff, and indigents filing civil actions have no constitutional right to counsel. However, 28 U.S.C. § 1915(e)(1) provides that the court may request an attorney to represent any person unable to afford counsel. Plaintiff made an application to proceed in forma pauperis, which was granted. Therefore, he is within the class to whom 28 U.S.C. § 1915(e)(1) speaks.
When an application is made for the appointment of counsel by an indigent civil litigant, the following criteria are to be applied by the court in determining whether to grant the application: 1) the merits of the party's claim; 2) the party's ability to pay; 3) the party's effort to obtain a lawyer; 4) the availability of a lawyer; and 5) the party's ability to gather and use the relevant facts in the prosecution of the action. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). With respect to the merits of a plaintiffs claim(s), it must appear to the court "from the face of the pleadings" (see Stewart v. McMickens, 677 F. Supp. 226, 228 [S.D.N.Y. 1988]), that the claim(s) asserted by the plaintiff "may have merit," (see Vargas v. City of New York, No. 97 Civ. 8426, 1999 WL 486926, at *2 [S.D.N.Y. July 9, 1999]), or that the plaintiff appears to have some chance of success. . . ." Hodge v. Police Officers, 802 F.2d 58, 60-61 (2d Cir. 1986).
In the case at bar, plaintiff has alleged that his civil rights were violated through the unwarranted use of excessive force by corrections personnel, which caused him to sustain injuries to his genitals, eyes, legs and back, and to suffer pain. From the face of the complaint, it appears that plaintiffs claim(s) may have merit.
Plaintiff has an intimate knowledge of the facts and circumstances which are the most relevant to this action. He does not appear to need the investigative services of counsel to uncover the facts or to substantiate his claims. The trial of this action will likely turn on the resolution of hotly contested factual allegations. These contested factual allegations will best be explored by one who is skilled at cross-examination. Nothing in the record before the Court indicates that plaintiff has that skill. Furthermore, it is likely that expert medical testimony will have to be developed and presented by the parties. Nothing in the record indicates that plaintiff has the skills necessary to perform those tasks adequately. The record before the Court indicates that plaintiff has attempted to recruit counsel to assist him in meeting these challenges, but his efforts have been unsuccessful.
Plaintiff has asserted that a variety of constitutional amendments have been violated by the misconduct he attributes to the defendants. In submissions made to the Court, plaintiff has alleged that his ability to perform the legal research needed to address the constitutional issues effectively, during the prosecution of this action, has been hampered by constraints placed on his access to the law library at the correctional facility where he is housed; this too militates in favor of granting plaintiffs request for counsel.
For the reasons set forth above, plaintiffs application for appointment of counsel is granted. The Pro Se Office for this judicial district is directed to request pro bono counsel for plaintiff in accordance with the Pro Bono Panel's procedures. The Pro Se Office should note that plaintiff has indicated a desire to have a bilingual (Spanish/English) attorney assist him if that is possible.