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finding that a prisoner stated an Eighth Amendment excessive force claim because the "factual allegations provide[d] sufficient details to show that he suffered pain and injury, and, though the plaintiff did not surrender his slippers to the correction officer immediately, the use of a chemical agent . . . do[es] not appear to qualify as force applied in a good-faith effort to maintain or restore discipline"
Summary of this case from Parsons v. City of N.Y.Opinion
08 Civ. 01520 (BSJ) (KNF).
January 9, 2009
MEMORANDUM and ORDER
I. INTRODUCTION
Anthony Medina ("Medina"), proceeding pro se and in forma pauperis, commenced this action, pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, alleging that Warden Gonzalez ("Gonzalez"), Captain Menge ("Menge"), Captain Graham ("Graham"), Captain Boyd ("Boyd"), Correction Officer S. Trail ("Trail"), Correction Officer McDonald ("McDonald"), Correction Officer M. Lonnborg ("Lonnborg"), Correction Officer Bowden ("Bowden"), Correction Officer John Doe One ("Doe One"), Correction Officer John Doe Two ("Doe Two"), Correction Officer John Doe Three ("Doe Three"), and Captain Jane Doe ("Jane Doe") (collectively "defendants") — all of whom were employees of the Robert N. Davoren Correctional Center on Riker's Island-violated his Eighth and Fourteenth Amendment rights by assaulting him, and conspired to "cover up" the assaults.
Medina requests that the Court appoint counsel to assist him in prosecuting this action and notes that he requires assistance as this case involves: "several different factual and legal claims," "medical issues that will require expert testimony," and conflicting accounts of the incidents in question. In addition, the plaintiff alleges he has "mental health issues, is visually impaired," requires assistance in obtaining discovery materials and locating witnesses, and has "no ability to investigate the facts of this case." The plaintiff notes he has attempted to secure counsel; however: (1) one attorney agreed to represent him and then discontinued representation, (2) another attorney "agreed to take the case but wanted too much of any award, thus the plaintiff refused representation," and (3) a third attorney refused representation. The plaintiff's application, for appointed counsel, is addressed below.
II. BACKGROUND
In his complaint, Medina alleges that, in June 2006, he was transferred from the custody of the New York State Department of Correctional Services ("DOCS") to the custody of the New York City Department of Corrections, at Riker's Island. On June 20, 2006, Gonzalez and a deputy warden were "making rounds of the facility" when they ordered Medina to "surrender his slippers because the slippers belonged to the facility." Medina responded that the slippers belonged to him, as he had brought the slippers with him from DOCS. Menge, Graham, and Doe One "asked [Medina] for the slippers." Medina reiterated that the slippers belonged to him and offered to show a receipt from DOCS verifying his ownership and, when Medina turned to enter his cell to retrieve the receipt, he was sprayed with "Oleoresin Capsiaim spray (mace-pepper spray)" by Menge, Graham and Doe One while Gonzalez and the deputy warden watched. Thereafter, Boyd, Graham, Menge, Trail, McDonald, Lonnborg, Bowden, and John Does Two and Three assaulted the plaintiff in four episodes, as Medina wavered in and out of consciousness. The plaintiff alleged that, after the final assault, he was hospitalized. The scope of the plaintiff's injuries included: "emotional distress" as well as physical injuries ranging from "multiple abrasions and contusions to his right eye, face, lip, left ear, head, chest, neck, back, legs, hand and both wrists; a left eye hemor[r]hage, left ear hemato[m]a, a broken back, arthritis of the spine, nerve damage and paresthesiae." The plaintiff maintains he continues to be treated for his back injury and nerve damage with pain medications and physical therapy.
With regard to the conspiracy claim, the plaintiff alleges Trail and Lonnborg filed separate "false and misleading" misbehavior reports in furtherance of the conspiracy to "cover up their misconduct." The plaintiff also alleges the defendants conspired to "cover up the attacks" by confiscating evidence, and leaving the plaintiff unconscious in the shower area where he would not be found easily. The plaintiff requests monetary damages and declaratory relief.
III. DISCUSSION
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) applies.
"In deciding whether to appoint counsel, [a] district [court] should first determine whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986), cert. denied, 502 U.S. 986, 112 S. Ct. 596 (1991). This means that it appears to the court "from the face of the pleading[s]," (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 U.S. Dist. LEXIS 10406, at *5; 1999 WL 486926, at *2 [S.D.N.Y. July 9, 1999]), or that the plaintiff "appears to have some chance of success. . . ." Hodge, 802 F.2d at 60-61. The pleadings drafted by a pro se litigant, such as Medina, are to be construed liberally and interpreted to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
In order for the plaintiff to prevail on his Eighth Amendment excessive force claim, made pursuant to 42 U.S.C. § 1983, he must show that: (1) objectively, the deprivation alleged is sufficiently serious to reach constitutional dimensions; and (2) subjectively, the defendants must have acted with a "sufficiently culpable state of mind" associated with the "unnecessary and wanton infliction of pain." Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977 (1994); see Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993). Whether conduct is "wanton" depends on "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically [to] caus[e] harm." Hudson v. McMillian, 503 U.S. 1, 6, 112 S. Ct. 995, 998 (1992) (internal quotations and citations omitted).
Looking solely to the face of the pleadings, it appears that the plaintiff's Eighth Amendment claim may have merit. The plaintiff's factual allegations provide sufficient details to show that he suffered pain and injury, and, though the plaintiff did not surrender his slippers to correction officers immediately, the use of a chemical agent and the repeated assaults alleged do not appear to qualify as "force . . . applied in a good-faith effort to maintain or restore discipline," but, rather, appear to have been used "maliciously and sadistically [to] caus[e] harm." Hudson, supra.
In order to sustain a claim under 42 U.S.C. § 1985(3), a plaintiff must demonstrate that the defendants acted with racial or other class-based animus in conspiring to deprive the plaintiff of his civil rights. See United Bhd. of Carpenters Joiners, Local 610 v. Scott, 463 U.S. 825, 835, 103 S. Ct. 3352, 3359 (1983) (citing Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798). The plaintiff does not allege, in his complaint, that the defendants were motivated by race or some other class-based animus in assaulting him and conspiring to "cover-up" the assaults. As a result, at this juncture, it appears that the plaintiff's claim under 42 U.S.C. § 1985(3) is deficient. By extension, since "a § 1986 claim must be predicated upon a valid § 1985 claim[,]" the plaintiff's § 1986 claim does not appear likely to be of merit. Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993).
Despite the appearance of merit to Medina's Eighth Amendment claim, appointing counsel would not be appropriate since, in his request for appointed counsel, Medina states that an attorney had agreed to represent him, but Medina refused counsel's offer because of the portion of the prospective recovery counsel indicated he wanted for his fee. See Hodge, 802 F.2d at 61 ("[i]n our view, the language of [ 28 U.S.C. § 1915] requires that the indigent be unable to obtain counsel before appointment will even be considered"). Therefore, the plaintiff's request, that the Court appoint counsel to represent him, is denied.
SO ORDERED.