Opinion
6:20-cv-1316 (GTS/TWD)
11-30-2020
LEE SPENCER, Plaintiff, v. SCHENECTADY POLICE DEPARTMENT; JOHN DOE 1; JOHN DOE 2; SCHENECTADY COUNTY CORRECTIONAL FACILITY, Defendants.
APPEARANCES: LEE SPENCER Plaintiff, pro se 19-A-0781 Mid-State Correctional Facility P.O. Box 2500 Marcy, NY 13403
APPEARANCES: LEE SPENCER
Plaintiff, pro se
19-A-0781
Mid-State Correctional Facility
P.O. Box 2500
Marcy, NY 13403 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has sent for review a pro se civil rights complaint filed by Plaintiff Lee Spencer pursuant to 42 U.S.C. §1983 ("Section 1983"). (Dkt. Nos. 1, 9.) Plaintiff, who is presently incarcerated, has not paid the statutory filing fee and seeks leave to proceed in forma paupers ("IFP Application"). (Dkt. Nos. 2, 4.) Also before the Court is a letter motion for appointment of counsel. (Dkt. No. 8.)
On or about October 23, 2020, Plaintiff filed the complaint in this action. (Dkt. No. 1.) On or about November 25, 2010, Plaintiff filed an "amended complaint," naming the Schenectady County Correctional Facility ("Schenectady County C.F.") as the only Defendant. (Dkt. No. 9.) At this early juncture, and in deference to Plaintiff's pro se status, rather than treat the "amended complaint" as a superseding pleading, the Court will consider Plaintiff's "amended complaint" as a supplement to his original complaint and consider them as a single pleading for purposes of initial review. (Dkt. Nos. 1, 9.) The Clerk is directed to add Schenectady County Correctional Facility as a Defendant on the docket.
On October 26, 2020, the Court administratively closed this action due to Plaintiff's failure to comply with the filing fee requirement. (Dkt. No. 3.) On October 29, 2020, this action was restored to the Court's active docket. (Dkt. No. 5.)
I. IFP APPLICATION
A court may grant in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). Upon review, Plaintiff has now submitted a completed and signed IFP Application, which demonstrates economic need, and has filed the inmate authorization form required in the Northern District of New York. (Dkt. Nos. 2, 4.) Accordingly, Plaintiff's IFP Application is granted.
Section 1915 permits "an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged." Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). "Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts." Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)). Additionally, Plaintiff should also note that although his IFP Application has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
II. SUFFICIENCY OF THE COMPLAINT
A. Standard of Review
Having found that Plaintiff meets the financial criteria for commencing this action in forma pauperis, and because Plaintiff seeks relief from an officer or employee of a governmental entity, the Court must consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A.
28 U.S.C. § 1915(e) directs that when a person proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted . . . ." 28 U.S.C. § 1915(e)(2)(B)(ii).
Likewise, under 28 U.S.C. § 1915A, a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or 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.
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id.
In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
A pro se litigant's pleadings are held to a less strict standard than attorney drafted pleadings. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) ("Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties."). Because plaintiff is proceeding pro se, the Court construes her pleadings "to raise the strongest arguments that they suggest." See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per curiam) (internal quotation marks omitted). However, this "does not exempt a [pro se litigant] from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
B. Summary of the Complaint
On March 30, 2018, Plaintiff was arrested in Schenectady, New York by Defendants John Doe 1, Patrol Man Officer ("John Doe 1") and John Doe 2, Patrol Man Officer ("John Doe 2"). (Dkt. No. 1 at 4.) While effecting his arrest, John Doe 1, "cuffed [Plaintiff] with excessive force." Id. Plaintiff asked John Doe 1 "if he could not put cuffs on more than one click" because the "cuffs were very small and [Plaintiff] has big hands and wrist[s]." Id. Plaintiff was not resisting arresting, nor did he run. Id. Plaintiff was "put into back seat." Id.
The address Plaintiff provided for John Doe 1 and John Doe 2 is that that of the Schenectady Police Department. Any references in the complaint to "Patrol Man Officer" is deemed to refer to an Officer of the Schenectady Police Department.
Page references to documents identified by docket number are to the page numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Unless noted, excerpts from the complaint are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Plaintiff asked John Doe 2, "can you loosen my right cuff it is to tight." Id. He replied, "we will at station." Id. While in the back seat, Plaintiff's "wrist and right hand get excessively hot loosing feeling." Id. Plaintiff yelled, "these fucking cuff I have not feeling in my hand." Id. John Doe 2 stated, "when we get to precinct the cuffs will come off." Id.
Plaintiff has annexed to the complaint copies of what appear to be mailings and filings in the Supreme Court of the State of New York and Schenectady City Court, and related correspondence. See id. at 6-17. In these attached documents, Plaintiff claims, inter alia, that as a result of the above-incident he suffers "lack of mobility in right wrist pain and nerve damage in thumb. The hand cuff where to tight causing thumb and pointer finger to turn blueish-purple." Id. at 15.
To the extent that the exhibits are relevant to the incident described in the complaint, the Court will consider the complaint as well as any documents attached. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference).
Based on the foregoing, Plaintiff's complaint lists two causes of action: (1) John Doe 1 "puts cuffs on with excessive force" and (2) John Doe 2 refused to loosen cuffs "causing unconstitutional conditions of confinement." Id. at 5. As relief, Plaintiff seeks "medical surgery, physical therapy," and unspecified money damages for "pain and suffering for 2 years." Id.
In the supplemental complaint naming the Schenectady County C.F. as the only Defendant, Plaintiff states that "[t]he medical evaluation and treatment I was provided was an x-ray." (Dkt. No. 9 at 4.) He was told "it is not broken and it is not life threatening, so there was nothing they could do about it." Id. "Nurse Barrett proceed to tell it was carpal tunnel syndrome, even gave me paper print outs on it." Id. Plaintiff lists two causes of action in the supplemental complaint, (1) negligent medical care; and (2) deliberate indifference to medical care. Id. at 5. Plaintiff notes he takes 600 mg of ibuprofen twice a day "to stop the pain." Id. He requests "pain & suffering settlement 7 million dollars." Id.
It is unclear whether Plaintiff was a pretrial detainee or was serving a sentence at the time of the events complained of in the supplemental complaint. For purposes of this initial review, the Court assumes that Plaintiff was a pretrial detainee when his claims arose.
Rule 10(a) of the Federal Rules of Civil Procedure requires that all defendants be listed in the caption of the complaint. The rule provides that, "the title of the complaint must name all the parties." Fed. R. Civ. P. 10(a). "A party not named in the caption of the complaint is not a party to the action." Bloodywone v. Bellnier, No. 9:18-CV-0615 (GTS/DJS), 2018 WL 10550308, at 5 n.8 (N.D.N.Y. Oct. 17, 2018) (citing Abbas v. U.S., No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (the failure to name a party in the caption makes it "infeasible for the Court to determine which of the individual officers mentioned in the body of the complaint should be deemed to be defendants to which claims")). "If people are not also named in the caption of the [ ] complaint, they will not be defendants in the case." Whitley v. Krinser, No. 06- CV-0575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007). Nurse Barrett is not identified as a Defendant in the caption of the complaint or the list of parties. Thus, the Court will not construe the complaint to include any claims or causes of action against Nurse Barrett.
For a complete statement reference is made to the complaint. (Dkt. Nos. 1, 9.)
C. Analysis
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which establishes a cause of action for "'the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990); see also Myers v. Wollowitz, No. 95-CV-0272 (TJM), 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (finding that "[Section] 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights"). "Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Thus, to state a cognizable claim under Section 1983, a complaint must allege "(1) 'that some person has deprived [the plaintiff] of a federal right,' and (2) 'that the person who has deprived [the plaintiff] of that right acted under color of state law.'" Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)) (alteration omitted).
The Court construes Plaintiff's complaint as raising the following: (1) Forth Amendment excessive force and failure to intervene claims against John Doe 1, John Doe 2, and Schenectady Police Department; and (2) Fourteenth Amendment and state law claims related to his medical care against Schenectady County C.F.
1. John Doe 1 and John Doe 2
The Fourth Amendment to the Constitution (as applicable to the actions of local police departments and police officers through the Fourteenth Amendment) protects the right of the people to be free from unreasonable searches or seizures. See U.S. Const. amend. IV. In particular, the Fourth Amendment prohibits the police from using unreasonable or excessive force when they engage in the arrest of a person. See Graham v. Connor, 490 U.S. 386 (1989); Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019). But "[b]ecause 'the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it, determining whether the amount of force an officer used is reasonable 'requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'" Cugini, 941 F.3d at 612 (quoting Graham, 490 U.S. at 396). Thus, the determination whether the police have used excessive force in the course of arresting a suspect "'requires careful attention to the facts and circumstances of each particular case, including' (1) 'the severity of the crime at issue,' (2) 'whether the suspect poses an immediate threat to the safety of the officers or others,' and (3) 'whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.'" Id. (quoting Graham, 490 U.S. at 397).
In addition, "[i]t is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence." Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)); accord Sloley v. VanBramer, 945 F.3d 30, 46-47 (2d Cir. 2019). "As such, an officer who fails to intervene where he or she observes or has reason to know that excessive force is being used or a constitutional violation has been committed by a fellow officer is liable for the preventable harm caused by that officer." Portillo v. Webb, No. 16-CV-4731, 2017 WL 4570374, at *4 (S.D.N.Y. Oct. 11, 2017) (collecting cases), report and recommendation adopted by 2018 WL 481889 (S.D.N.Y. Jan. 17, 2018).
This Circuit has recognized that "excessively tight handcuffing that causes injury can constitute excessive force." Shamir v. City of N.Y., 804 F.3d 553, 557 (2d Cir. 2015). Traditionally, in determining whether officers applied handcuffs reasonably, courts would consider the following factors: (1) whether the handcuffs were unreasonably tight; (2) whether the defendants ignored the plaintiff's pleas that the handcuffs were too tight; and (3) the degree of injury to the wrists. Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 468 (S.D.N.Y. 2008) (citation omitted). With regard to the injury prong, "[t]here is a consensus among courts in this circuit that tight handcuffing does not constitute excessive force unless it causes some injury beyond temporary discomfort." Id. at 468 (collecting cases). To prevail, a plaintiff's injuries "need not be 'severe or permanent,' but must be more than merely 'de minimis.'" Usavage v. Port Auth. of New York & New Jersey, 932 F. Supp. 2d 575, 592 (S.D.N.Y. 2013) (quoting Vogeler v. Colbath, No. 04 Civ. 6071, 2005 WL 2482549, at *9 (S.D.N.Y. Oct. 6, 2005)). "The most common injuries found to satisfy the injury requirement in handcuff cases are scarring and nerve damage." Id. (citations omitted).
Recently, however, the Second Circuit issued a decision clarifying the law with respect to excessive force claims involving tight handcuffing. To that end, in Cugini, supra, the Second Circuit held that it was no longer a pre-requisite to a viable excessive force claim for the individual to have specifically voiced protest to the officer that the handcuffs were too tight. Cugini, 941 F.3d at 614. Rather, the touchstone of an excessive force claim regarding tight handcuffing turns on whether a reasonable officer would have known that the force used was excessive. Id. at 614.
Mindful of the Second Circuit's direction that a pro se plaintiff's pleadings must be liberally construed, Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court recommends that Plaintiff's Fourth Amendment excessive force and failure to intervene claims against John Doe 1 and John Doe 2 are sufficient to survive initial review under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A and require a response. In so recommending, the Court expresses no opinion regarding whether the claims could survive a properly filed motion to dismiss or motion for summary judgment.
2. Schenectady Police Department
The caption of the complaint lists the Schenectady Police Department as a Defendant. (Dkt. No. 1 at 1.) "[U]nder New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued." Davis v. Lynbrook Police Dep't, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002) (dismissing § 1983 claim brought against the Lynbrook Police Department); see also La Grande v. Town of Bethlehem Police Dep't, No. 1:08-CV-0738 (LEK/DRH), 2009 WL 2868231, at *2 (N.D.N.Y. Sept. 1, 2009) ("Since the Bethlehem Police Department cannot be sued pursuant to 42 U.S.C. § 1983, [the plaintiff's] [c]omplaint is dismissed as against the Town of Bethlehem Police Department."); Jenkins v. Liadka, No. 5:10-CV-1223 (GTS/DEP), 2012 WL 4052286, at *5 (N.D.N.Y. Sept. 13, 2012) ("Because the Syracuse Police Department is merely an administrative arm of the City of Syracuse, it is not a proper defendant.").
While Plaintiff could sue the municipality—the City of Schenectady—rather than one of its "departments," a municipality may only be named as a defendant in certain circumstances. Pursuant to the standard for establishing municipality liability laid out in Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978), in order to set forth a cognizable claim for municipal liability under Section 1983, a plaintiff must plead and prove that a deprivation of his constitutional rights "was caused by a governmental custom, policy, or usage of the municipality." Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436 U.S. 658); see also Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) ("The plaintiff must first prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving officer.") A municipality may be liable for deprivation of constitutional rights under Section 1983 for policies or customs resulting in inadequate training, supervision, or hiring when the failure to train, supervise, or hire amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989). A plaintiff must also establish a causal connection - an affirmative link-between the policy and the deprivation of his constitutional rights. Oklahoma v. Tuttle, 471 U.S. 808, 823 (1985) (plurality opinion).
Here, Plaintiff has failed to identify or allege any facts plausibly showing the existence of a municipal policy or custom of the City of Schenectady authorizing, permitting, allowing, or tolerating "abuses in violation of the Constitution" or any affirmative link between such a policy and defendants' alleged actions with regard to Plaintiff. Importantly, a municipality may not be held liable solely because it employs a tortfeasor. Los Angeles Cty., Cal. v. Humphries, 562 U.S. 29, 36 (2010). Only when the municipality, through the execution of its policies, actually deprives an individual of his constitutional rights, is it liable for the injury. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
Based upon the foregoing, the Court recommends dismissal of Plaintiff's complaint against Schenectady Police Department with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted.
Moreover, notwithstanding a very liberal interpretation of the complaint, to the extent that Plaintiff's complaint could be construed to be asserted against the City of Schenectady, as the real party in interest, it is recommended that the Monell claims be dismissed with leave to replead pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
If this Report-Recommendation is adopted, should Plaintiff choose to file an amended complaint, he should note that the law in this circuit clearly provides that "'complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.'" Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)); Pourzandvakil v. Humphry, No. 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiff must clearly set forth the facts that give rise to the claims, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating the specific involvement of any of the named defendants in the constitutional deprivations alleged in sufficient detail to establish that they were tangibly connected to those deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Finally, any such amended complaint will replace the existing complaint (Dkt. Nos. 1, 9), and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) ("It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.").
3. Schenectady County C.F.
The caption of the supplemental complaint lists Schenectady County C.F. as a Defendant. (Dkt. No. 9 at 1.) However, for reasons explained above, because the Schenectady County C.F. is an administrative arm of Schenectady County, without a legal identity separate and apart from the County, it lacks the capacity to be sued. See Part III.C.2, supra.; see also Lukes v. Nassau Cty. Jail, No. 12-CV-1139, 2012 WL 1965663, at *2 (E.D.N.Y. May 29, 2012) (dismissing claims against defendant Nassau County Jail because it "is an administrative arm of Nassau County, without a legal identity separate and apart from the County"); Solis v. Cty. of Westchester, No. 94-CV-5102, 1995 WL 14072, at *1 (S.D.N.Y. Jan. 10,1995) (noting that the Westchester County Department of Corrections is not a legal entity and that the County of Westchester is the real party in interest).
Based upon the foregoing, the Court recommends dismissal of Plaintiff's complaint against Schenectady County C.F. with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted.
In deference to Plaintiff's pro se status, the Court construes Plaintiff's claims as if they had been brought against Schenectady County, the real party in interest. However, as discussed above, municipal liability is limited under Section 1983 by Monell. See Part III.C.2, supra. Here, for the reasons explained above, notwithstanding a very liberal interpretation of the complaint, to the extent that Plaintiff's complaint could be construed to be asserted against Schenectady County, as the real party in interest, it is recommended that the Monell claims be dismissed with leave to replead pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
D. Service of Process
The Court notes that if the above recommendations are adopted, the remaining Defendants to this action will be John Doe 1 and John Doe 2, City of Schenectady Police Officers. The U.S. Marshals, however, cannot effect service on a "John Doe" defendant. The Second Circuit has instructed that district courts should assist incarcerated pro se plaintiffs in identifying John Doe defendants. See Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997) (explaining that a "district court may pursue any course that it deems appropriate to a further inquiry into the identity" of a John Doe defendant in assisting a pro se plaintiff). In this case, Plaintiff has identified the date and location of the alleged incident.
Accordingly, in deference to Plaintiff's status as an incarcerated, pro se litigant, and mindful of the Court's obligation to assist such litigants in identifying unknown defendants, the Court recommends that the District Court direct the Clerk to sua sponte add the City of Schenectady Chief of Police, Eric Clifford, as a named Defendant in the action solely so that service may proceed and issue may be joined. Once issued is joined, Plaintiff must seek, through discovery, the identity of the John Doe defendants. See Paralta v. Doe, No. 04-CV-6559, 2005 WL 357358, at *2 (W.D.N.Y. Jan. 24, 2005) (permitting the addition of the superintendent to facilitate service and discovery to uncover the identities of the unknown defendants) (citing Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997) (suggesting that a district court should assist a pro se incarcerated litigant with his inquiry as to the identity of an unknown defendant and "may pursue any course that it deems appropriate to a further inquiry into the identity" of the unknown defendant)); see also Brown v. Doe, No. 96-CV-1222, 1999 WL 893070, at *2 (S.D.N.Y. Oct. 18, 1999) (deferring the defendants' motion to dismiss until they provided the requisite discovery information and materials to the pro se prisoner litigant on the grounds that "[p]laintiffs, especially pro se incarcerated plaintiffs should be given an opportunity to identify . . . unknown defendants through discovery)." By recommending this measure, the Court does not suggest in any way that the City of Schenectady Chief of Police was personally involved in the constitutional deprivations alleged in Plaintiff's complaint or is otherwise subject to liability for the acts giving rise to Plaintiff's claims.
III. MOTION FOR APPOINTMENT OF COUNSEL
Upon review of the docket, the Count notes Plaintiff filed a letter dated November 4, 2020, addressed to the "Pro se Assistance Program." (Dkt. No. 8.) Plaintiff states he has "tried so many other attorneys" and can "provide the dates the letters were sent out." Id. He further states, "Please help me in anyway possible." Id. To the extent Plaintiff's letter seeks the appointment of pro bono counsel, the letter motion is denied without prejudice.
"A party has no constitutionally guaranteed right to the assistance of counsel in a civil case." Leftridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62, 68 (2d Cir. 2011). Courts cannot utilize a bright-line test in determining whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). As the Second Circuit stated in Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986), the court "should first determine whether the indigent's position seems likely to be of substance." 802 F.2d at 61. If the claim satisfies that threshold requirement, a number of factors must be carefully considered by the court in ruling upon such a motion. Among these factors are:
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.Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge, 802 F.2d at 61-62). This is not to say that all, or indeed any, of these factors are controlling in a particular case. Rather, each case must be decided on its own facts. Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995) (citing Hodge, 802 F.2d at 61).
At this early stage of the litigation, where the complaint has not yet been served on the Defendants and they have not had the opportunity to respond to Plaintiff's allegations, Plaintiff's letter motion for appointment of counsel is premature. Therefore, Plaintiff's letter motion is denied without prejudice and with leave to renew should the District Judge allow this action to proceed. (Dkt. No. 8.) Plaintiff must show proof that he has attempted to obtain counsel from the private sector or public interest firms prior to filing a renewed motion for appointment of counsel.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. Nos. 2, 4) is GRANTED; and it is further
RECOMMENDED that the Clerk provide the superintendent of the facility designated by Plaintiff as his current location with a copy of Plaintiff's Inmate Authorization (Dkt. No. 4), and notify the official that this action has been filed and that Plaintiff is required to pay to the Northern District of New York the statutory filing fee of $350, over time, pursuant to 28 U.S.C. § 1915; and it is further
RECOMMENDED that the Clerk provide a copy of Plaintiff's Inmate Authorization (Dkt. No. 4.) to the Financial Deputy of the Clerk's Office; and it is further
ORDERED that the Clerk is directed to AMEND the docket such that Defendant "Schenectady County Police Department" is changed to Defendant "Schenectady Police Department;" and it is further
ORDERED that the Clerk is directed to ADD Schenectady County Correctional Facility as a Defendant; and it is further
RECOMMENDED that the Plaintiff's Fourth Amendment excessive force and failure to intervene claims against Defendants John Doe 1 and John Doe 2 SURVIVE the initial review and require a response; and is further
RECOMMENDED that Plaintiff's claims against Defendant Schenectady Police Department be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1); and it is further
RECOMMENDED that Plaintiff's claims against Defendant Schenectady County Correctional Facility be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1); and it is further
RECOMMENDED that Plaintiff be granted leave to replead consistent with the foregoing; and it is further
RECOMMENDED that the Clerk ADD the City of Schenectady Chief of Police, Eric Clifford, as a Defendant FOR PURPOSES OF SERVICE AND DISCOVERY ONLY; and it is further
ORDERED that Plaintiff's letter motion for appointment of pro bono counsel (Dkt. No. 8) is DENIED WITHOUT PREJUDICE AND WITH LEAVE TO RENEW; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with a copy of the unpublished decision cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: November 30, 2020
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge