DECISION AND ORDER

CHRISTIAN F. HUMMEL, Magistrate Judge.

I. INTRODUCTION

Plaintiff pro se Jermaine Fann commenced this civil rights action pro se in November 2015. Dkt. No. 1. By his complaint, plaintiff asserts numerous claims arising out of his confinement in the custody of the Department of Corrections and Community Supervision ("DOCCS") at Auburn Correctional Facility.1 Plaintiff claims, among other things, that visual body cavity searches conducted on June 3, 2015 and July 9, 2015 violated his rights under the Fourth Amendment, and that he was retaliated against on several occasions in violation of his First Amendment rights. Id.2 Defendants Graham, Ederer, Cornell, Lovejoy, Steinberg, Thomas, and Schramm have answered the complaint. See Dkt. Nos. 29, 43, 47.3 Discovery is ongoing.4

Presently before the Court is plaintiff's motion for leave to file an amended complaint. Dkt. No. 45. Plaintiff also seeks reconsideration of this Court's Decision and Order (the "July Order") denying his request for appointment of pro bono counsel. See Dkt. No. 74.

II. DISCUSSION5

The filing of amended and supplemental pleadings is governed by Rule 15 of the Federal Rules of Civil Procedure. FED. R. CIV. P. 15. Rule 15(a) states that "[t]he court should freely give leave when justice so requires." FED. R. CIV. P. 15(a)(2); see Foman v. Davis, 371 U.S. 178, 182 (1962); Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir. 1993). The Supreme Court of the United States has stated:

In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should . . . be "freely given."

Foman v. Davis, 371 U.S. 178, 182 (1962). The decision to grant or deny a motion to amend or supplement a complaint is committed to the sound discretion of the trial court, and the court's decision is not subject to review on appeal except for abuse of discretion. See Fielding v. Tollaksen, 510 F.3d 175, 179 (2d Cir. 2007).

Plaintiff has submitted a proposed amended complaint in support of his motion. See Dkt. No. 45-2 ("Prop. Am. Compl."). As set forth in his accompanying affidavit, plaintiff seeks to name Dep. Supt. Fagan as an additional defendant, in his official capacity, "due to the change of positions in the Department of Corrections hierarchy." Dkt. No. 45-1 at 2.6 Plaintiff also repleads his disciplinary due process claim against Lt. Ouimetto which was dismissed upon initial review of the complaint. See Dkt. No. 5 at 15-19. In addition to setting forth additional factual allegations in support of his pending claims, plaintiff states that the amended complaint includes "several new constitutional violations of the plaintiff's rights by the defendants." Id. Counsel for defendants has advised the Court that defendants "do not object" to the filing of plaintiff's proposed amended complaint. Dkt. No. 52.7

Upon review, the Court grants plaintiff's motion to amend in part and denies it in part. It is well-settled that "a prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997).8 As a result, plaintiff's claims against defendants Thomas, Cornell, and Steinberg for having filed false inmate misbehavior reports against him in violation of his Fourteenth Amendment due process rights, see Prop. Am. Compl. at ¶¶ 103, 191, are not cognizable in this Section 1983 action and this aspect of plaintiff's motion is denied. However, in light of plaintiff's pro se status, the motion to amend is granted in all other respects. The Clerk is directed to file the proposed amended complaint as the amended complaint in this action, and revise the docket to add Lt. Ouimetto and Dep. Supt. Fagan as defendants.

As noted, plaintiff also seeks reconsideration of the July Order, and asks that pro bono counsel be appointed to represent him in this action. Dkt. No. 74. Plaintiff contends that the Court overlooked that part of his motion which reflected his efforts to secure legal representation on his own, and asks that his request for counsel be addressed on its merits. Id. at 4-5.9 Upon review, the Court grants plaintiff's request for reconsideration of the July Order. Accordingly, the Court will consider whether appointment of pro bono counsel is warranted on the record before the Court in this action.

A party has no constitutionally guaranteed right to the assistance of counsel in a civil case. See, e.g., United States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981). However, pursuant to 28 U.S.C. § 1915(e), the Court may request an attorney to represent an indigent party. 28 U.S.C. § 1915(e)(1) (authorizing the court to "request an attorney to represent any person unable to afford counsel.").10

Courts cannot utilize a bright-line test in determining whether counsel should be appointed. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a num ber of factors must be carefully considered by the court in ruling upon such a motion. As a threshold matter, the court should ascertain whether the indigent's claims seem likely to be of substance. If so, the court should then consider:

Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)). 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).

Here, plaintiff contends that appointment of counsel is warranted because this action requires "extensive discovery" — including oral depositions of defendants — which is exceedingly difficult for an incarcerated litigant to pursue. See Dkt. No. 61-2 at 14. Plaintiff also contends that First Amendment retaliation claims are complex and "best" handled by counsel. Id. Further, plaintiff notes the ongoing discovery disputes, and claims that counsel should be appointed because DOCCS is "making it hard for the plaintiff to investigate the facts due to there [sic] go to defense of `safety and security.'" Dkt. No. 74 at 4.

Upon review, and with due consideration of plaintiff's status as a pro se litigant, the Court finds that appointment of pro bono counsel is not warranted at this time. The record before the Court does not demonstrate that plaintiff is not able to effectively pursue his claims. Although plaintiff correctly notes that incarcerated litigants may face numerous obstacles in pursuing their lawsuits, plaintiff has advised the Court that he will soon be released from DOCCS custody. Moreover, the Court has been and will continue to be actively engaged in monitoring the discovery process and resolving disputes that may arise between the parties. Although it is possible that there will be conflicting evidence implicating the need for cross-examination at the time of the trial of this matter, as is the case in many actions brought under 42 U.S.C. § 1983 by pro se litigants, "this factor alone is not determinative of a motion for appointment of counsel." Velasquez, 899 F. Supp. at 974. Further, if this case survives a dispositive motion filed by defendants, it is highly probable that this Court will appoint trial counsel at the final pretrial conference.

Based upon the existing record in this case, the Court finds that appointment of pro bono counsel is unwarranted.11 Plaintiff may only file another motion for appointment of counsel in the event he can demonstrate that, in light of specific changed circumstances, consideration of the above factors warrants the granting of such an application.

III. CONCLUSION

WHEREFORE, based upon the foregoing, it is hereby

ORDERED that in accordance with information provided in the acknowledgments of service (Dkt. No. 16 at 5; Dkt. No. 32), the Clerk is directed to revise the docket to indicate that defendant C.O. Shramm's name is spelled "Schramm," and that defendant C.O. Stienberg's name is spelled "Steinberg;" and it is further

ORDERED that plaintiff's motion to amend (Dkt. No. 45) is GRANTED in part and DENIED in part as set forth above; and it is further

ORDERED that the Clerk is directed to (i) file the proposed amended complaint (Dkt. No. 45-2) as the amended complaint in this action; (ii) revise the docket to add Lt. Ouimetto and Dep. Supt. Fagan (in his official capacity) as defendants in this action; and (iii) issue amended summonses and forward them to the U.S. Marshal for service on defendants Ouimetto and Fagan; and it is further

ORDERED that a response to the amended complaint shall be filed by the defendants, or their counsel, as provided for in the Federal Rules of Civil Procedure; and it is further

ORDERED that plaintiff's motion (Dkt. No. 74) for reconsideration of the July Order is GRANTED; and it is further

ORDERED that plaintiff's request that pro bono counsel be appointed to represent him in this action (see Dkt. No. 61) is DENIED; and it is further

ORDERED that the Clerk serve a copy of this Decision and Order on the parties.

Prisoner who brought § 1983 action against city correctional facility and others, alleging deliberate indifference to serious dental problems, moved for pro bono counsel. The District Court, Pitman, J., held that claim was sufficiently meritorious to warrant submission of case to panel of pro bono attorneys for possible representation of prisoner by pro bono counsel.

Motion granted.

West Headnotes (1)

[1] Civil Rights

MEMORANDUM OPINION AND ORDER

PITMAN, Magistrate J.

*1 By a motion dated May 20, 2002, plaintiff moves for pro bono counsel.1 For the reasons set forth below, the motion is granted.

The factors to be considered in ruling on a motion for pro bono counsel are well settled and include "the merits of plaintiff's case, the plaintiff's ability to pay for private counsel, [plaintiff's] efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir.1986). Of these, "[t]he factor which command[s] the most attention [is] the merits." Id. Accord Odom v. Sielaff, 90 Civ. 7659(DAB), 1996 WL 208203 (S.D.N.Y. April 26, 1996). As noted fifteen years ago by the Court of Appeals:

Cooper v. A. Sargenti Co., supra, 877 F.2d at 174. See also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir.1997) ("`In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance.'").

Plaintiff's motion papers adequately establish all of the grounds for pro bono counsel except the potential merit of the claim. However, I conclude that the motion papers, in conjunction with the complaint, do establish a sufficient basis for the submission of this matter to the pro bono panel.

This action is brought pursuant to 42 U.S.C. § 1983; plaintiff, an incarcerated inmate, alleges that defendants were deliberately indifferent to serious dental problems from which he suffered with the result that plaintiff suffered prolonged an unnecessary pain and now suffers from an increased likelihood that plaintiff will lose all of his lower teeth.2 The complaint sets forth the alleged facts giving rise to plaintiff's claim, including plaintiff's numerous requests for treatment of his lower teeth and the actions taken in response. Although it is impossible to determine the ultimate merits of plaintiff's claim at this time, the detailed allegations in the complaint, the nature of the deficient health care alleged and plaintiff's allegation that he previously recovered a judgment in the New York Court of Claims for the loss of his upper teeth lead me to conclude that the plaintiff's claim is at least sufficiently meritorious for the complaint to be considered by the pro bono panel.

Accordingly, plaintiffs motion to have this matter added to the list of cases considered by the Court's pro bono panel is granted. The Pro Se Clerk is directed to submit a copy of the complaint and a copy of this Order to the members of the panel.

All Citations

Not Reported in F.Supp.2d, 2002 WL 31427349

Footnotes

1 In a civil case, such as this, the Court cannot actually "appoint" counsel for a litigant. Rather, in appropriate cases, the Court submits the case to a panel of volunteer attorneys. The members of the panel consider the case and each decides whether he or she will volunteer to represent the plaintiff. If no panel member agrees to represent the plaintiff, there is nothing more the Court can do. See generally Mallard v. United States District Court, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989). Thus, even in cases where the Court finds it is appropriate to request volunteer counsel, there is no guarantee that counsel will actually volunteer to represent plaintiff.

2 The complaint alleges that plaintiff has already lost all of his upper teeth as a result of deficient dental care provide by prison authorities.