Hassan v. John Doe et al
| Eslam Hassan |
| Krystyna, Correctional Officer John Doe, John and Jane Does, Captain John Doe, Anastasia Perez, Gregory Kuczinski, Commissioners John and Jane Does, Scott M. Stringer and Charles Castaldo |
| 1:2018cv07025 |
| December 4, 2018 |
| US District Court for the Eastern District of New York |
| Lois Bloom |
| Pamela K Chen |
| Prisoner: Civil Rights |
| 42 U.S.C. ยง 1983 Prisoner Civil Rights |
| Plaintiff |
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Filing 6
ORDER: For the reasons discussed in the attached document, Plaintiff's claims against Warden and Superintendent John and Jane Does, Gregory Kuczinski, Commissioners John and Jane Does, Scott M. Stringer, Charles Castaldo, Anastasia Perez, and Krystyna Borkowska are dismissed. The Court amends its December 19, 2018 Order to provide that no summons shall issue as to these Defendants. The Clerk of Court is respectfully directed to amend the caption to reflect the dismissal of these individuals. The case will proceed as to the two John Doe Correctional Officers and Captain John Doe. The Court requests that Corporation Counsel ascertain the full names and service addresses of these Defendants, who were allegedly involved in the incident at the Brooklyn Detention Center on February 18, 2016. See Valentin v. Dinkins, 121 F.3d 72 (2d. Cir. 1997) (per curiam). Plaintiff describes these three Defendants on page seven (7) of his complaint #1 . Corporation Counsel need not undertake to defend or indemnify these individuals at this juncture. This Order merely provides a means by which Plaintiff may name and properly serve these three Defendants as instructed by the Second Circuit in Valentin. Corporation Counsel is hereby requested to produce the information specified above regarding the identity and service addresses of the two John Doe Correctional Officers and Captain John Doe by February 18, 2019. Once this information is provided, Plaintiff's complaint shall be deemed amended to reflect the full names and service addresses of these three Defendants; summonses shall issue to them; and the United States Marshal Service shall serve the summonses, the complaint, and this Order upon them without prepayment of fees. The Clerk of Court shall send a copy of this Order to the Corporation Counsel for the City of New York, Special Federal Litigation Division. The case is referred to the Honorable Lois Bloom, Magistrate Judge, for pretrial supervision. The Court certifies pursuant to 28 U.S.C. 1915(a)(3) that any appeal would not be taken in good faith and therefore IFP status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Pamela K. Chen on 1/4/2019. (Nadig, Alok)
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ORDER: Plaintiff's application to proceed in forma pauperis under 28 U.S.C. 1915 #2 is hereby granted. The United States Marshals Service is directed to serve the summons and complaint upon the Defendants without prepayment of fees. Ordered by Judge Pamela K. Chen on 12/19/2018. (Nadig, Alok)
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ORDER: Plaintiff's motion to appoint counsel #3 is DENIED. In deciding whether to grant a request for counsel in a civil case, the Court must "first determine whether" the indigent's arguments are "likely to be of substance." Justice v. Kuhnapfel, 982 F. Supp. 2d 233, 234 (E.D.N.Y. 2013) (quoting Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989)). If the Court determines that this threshold requirement is met, it must "consider other factors appropriate to determination of whether counsel should be appointed," Wiggins v. Vega, No. 13-CV-2037, 2013 WL 5700970, at *1 (S.D.N.Y. Oct. 17, 2013), which include the "plaintiff's ability to obtain representation independently, and his ability to handle the case without assistance in the light of the required factual investigation, the complexity of the legal issues, and the need for expertly conducted cross-examination to test veracity," Cooper, 877 F.2d at 172. Plaintiff alleges that Defendants were deliberately indifferent in failing to protect him from an attack by another inmate and in failing to attend to the injuries he sustained as a result. (Compl., Dkt. 1, at 2-5.) The Court determines that it is not plainly apparent from the complaint that Defendants were subjectively aware of the risk their actions posed to Plaintiff. See Velasquez v. Bankich, No. 97-CV-8424, 2000 WL 1568326, at *2 (S.D.N.Y. Oct. 19, 2000) ("The failure to protect an inmate from being attacked by another inmate will constitute cruel and unusual punishment only where prison officials exhibit deliberate indifference to a substantial risk of harm to the inmate. Deliberate indifference is defined subjectively;...."). The Court therefore "does not find this case to be one of the rare cases where the merit of the plaintiff's claim is so apparent that the Court feels compelled to appoint counsel to vindicate his cause." Ramey v. Dep't of Corrs., No. 13-CV-17, 2013 WL 1867342, at *1 (S.D.N.Y. May 2, 2018). The other factors point to denying counsel as well. First, Plaintiff has not shown that he has made any attempt to obtain counsel on his own. See Justice, 982 F. Supp. 2d at 235 ("A plaintiff requesting appointment of counsel must show that she is unable to obtain counsel before appointment will even be considered." (quotation omitted)). Second, "it is clear from Plaintiff's submissions to the Court," which include a complaint in numbered paragraphs specifically articulating deliberate indifference claims as well as the standard for municipal liability (Compl. at 3-5), that "Plaintiff has sufficient intellect and sophistication to grasp the present issues." Ramey, 2013 WL 1867342, at *2. Third, the resolution of Plaintiff's claims "will not turn on particularly complex issues of law that would make it unfair or unreasonable to expect Plaintiff to proceed in the absence of legal counsel." Justice, 982 F. Supp. 2d at 236. See Irving v. Phillips, No. 15-CV-6413, 2017 WL 85427, at *3 (W.D.N.Y. Jan. 10, 2017) (denying motion to appoint counsel where "[t]he deliberate indifference claims in this case ar[ose] from a single incident and [were] not complex"). Ordered by Judge Pamela K. Chen on 12/17/2018. Nadig, Alok)
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| Filing 5 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Bowens, Priscilla) |
| Filing 4 Pursuant to 28 U.S.C. 1915 (as amended July 26, 1996), plaintiff is proceeding in forma pauperis and must pay the total $350 fee by monthly installments deducted from plaintiff's prison trust fund account (or institutional equivalent). (Bowens, Priscilla) |
| Filing 3 MOTION to Appoint Counsel by Eslam Hassan. (Bowens, Priscilla) |
| Filing 2 MOTION for Leave to Proceed in forma pauperis by Eslam Hassan. (Bowens, Priscilla) |
| Filing 1 COMPLAINT against Charles Castaldo, John Doe, John Doe, John and Jane Does, John and Jane Does(all Supervisors in liability), John and Jane Does(Warden and Superintendent, individually and in their official capacities), Krystyna, Gregory Kuczinski, Anastasia Perez, Scott M. Stringer, filed by Eslam Hassan. (Attachments: #1 Civil Cover Sheet, #2 Exhibit) (Bowens, Priscilla) |
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