Vann v. Sudranski

| usr c SDNY □ | DOCUMENT □ MEMORANDUM ENDORSEMENT | ELECTRONICALLY FILED | 1 DOC th □□ The Court has received from plaintiff, who is proceeding pro se and in forma pauperis, the attached motion, dated June 11, 2020, requesting appointment of pro bono counsel (Doc. #171). The is plaintiff’s fourth request for appointment of pro bono counsel. (See Docs. ##5, 59, 140). In the instant motion, plaintiff states this case presents “several different” and □ “complex” legal claims, and requires “discovery of documents and depositions.” (See Doc. #171 at ECF 2). Plaintiff's request for the appointment of pro bono counsel is DENIED WITHOUT PREJUDICE. As an initial matter, discovery has been complete for over a year. (See Docs. ##135, 139). Accordingly, plaintiffs request for pro bono counsel because this case requires discovery of documents and depositions is without merit. Secondly, on June 4, 2020, the Court issued an Opinion and Order granting summary judgment in defendants’ favor on plaintiff’s Eighth Amendment sexual abuse claim against C.O. Sudranski, as well as plaintiff's Eighth Amendment excessive force and failure to intervene claims against Lt. Hann. (See Doc. #170). Plaintiffs only claim that survived summary judgment is his Eighth Amendment excessive force claim against C.O. Sudranski. (Id.). Accordingly, plaintiff currently does not have “several different” and complex legal claims that require adjudication. (See Doc. #171 at ECF 2). Thirdly, the Court denied without prejudice plaintiffs three prior motions for appointment of pro bono counsel. (See Docs. ##10, 60, 141). At those times, having considered’ the type and complexity of this case, the merits of plaintiffs claims, and plaintiffs ability to present his case, the Court did not find any exceptional circumstances warranting appointment of counsel, Again, the Court has considered the type and complexity of this case, the merits of plaintiffs remaining claim, and plaintiff’s ability to present the case. At this time, and again, the Court does not find any exceptional circumstances in plaintiffs case that would warrant the appointment of counsel. See 28 U.S.C. § 1915 (e)(1); Cooper v, A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989), In fact, plaintiff consistently has demonstrated his ability to present this case. The Clerk is directed to terminate plaintiff's motion. (Doc. #171). Chambers will mail a copy of this Order to plaintiff at the address on the docket. Dated: June 17, 2020 White Plains, NY SO ORDERED: Vincent L, Briccetti United States District Judge Case 7:16-cv-0/360/-VB-LMo Document l/fi Frilea VO/L0/2U Frage 1 OF ‘UNITED STAVES DISTRICT COURT : SOUTHERN DOLTSTRICY OF NEW YORK _Kouriookein Vann, MOTION FOR APPOINTMENT OF COUNSEL □ ~against- Case No.6 CV_7367 Y. Sudranski, et al. Respondents, ceteris nnn mopsnanenn anteater neem pens . Plalmtiig, Kourdockein Vann, Pursuant te §1975, xequast . that, this court, appoint counsel to represent him in this case fox the following reason(s}: $) Plaintiff is unable to afford counsel. 2) The issues involved in this casa are complex, possibly with the need of an expart witness 3) The plaintiff has extremely limited access to the law □ Library. oo, ‘4) Over 30 days ago,. plaintiff's wrote numerous letters to numerous attorneys, asking them to handle his case, but, hag only denial replies, As shown with the original filing to the court. 5) Whe plaintiff has very limited knowledge of the law, and no catifications, or leyal dagreas, to WHEr@AS ha can professionally say or state his arguments in the proper and correct legal jargon needed to overcome the defense's attorney's hurdles and arguments... Especially considering the allegations made by plaintiff, . Dated: dune ll 2628 ariockein Vann Case 7: 1DRUHARATTOR -INSSUPUORICIOM. ALATNETSYIg/c<U Frage < ol / MOTION FOR APPOINTMENT OF COUNSEL IL, Kourilockein Vann, states the following: 1) Z am the plaintiff in the above entitled case. I make. thethis declaration in support for this appointment of counsel. □ 2) The complainant in this case alleges that the plaintiff □□ was subject to the misuse and abuse of force, in a deviant and nature. As well as, being fondled by correctional staff; While other unidentified staff stood by, and aid nothing/ failed to intervene, It alleges supervisory officials were aware of the vicolent actions of their subordinates, and are liable for failing to take action to control them. The plaintiff was subse~ quently denied due process in many aspects to lodging his compliant, receiving adequate and proper medical care, etc. Plaintiff was denied mediacl care ordered by specialists, with ex~ treme deliberate delays. : 3) This is a complex case, because it contains several different legal claims, with each claim involving a different set - of defendants. 4) The case involves medical issues that require expert testimony. □ 5) The plaintiff has requested for a jury trial. 6) The cage will require discovery of documents and depositjtions of a number of witnesses, . 7) The testimony will be in sharp conflict, since plain-~ ‘tiff alleges that the defendants are involved in assaulting . and fondling the plaintiff, while defendants,’ in their grievance veply, and their "to-from" to their supervisors, assert differently. . .8) The plaintiff has no legal education, certifications or degrees. . 9) The plaintiff has very limited access toe the law library and legal material, as well as the ability to investigate the. facts of the case. For example, by locating and, interviewing or staff or offenders who were possibly eye witnesses, 10) As set forth in the memorandum of law submitted with _ this motion, these facts, along with the legal merits of plain- . tiff's claims, support the appointment of counsel to represent the plaintiff. WHEREFORE, the plaintiff's motion for appointment of counsel should be granted. Pursuant to 28 U.S.C. $1746, I declare under penalty of perjury that, the foregoing OO. oN Dated: June \ ad2d . ,LLE } Mote LOckéen Vann □ Case 7:16-cv-0736/7-VB-LMS Documenti/l Filed Uo/lo/zU rage sols . MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL This is a Civil rights case, filled undar 42 U.S.C. § 1983 , filed by a state prisoner and asserting claims for the unconstitutional misuse and abuse of force, the denial of due process in subsequent addressments to issues raised therein the plaintiff's filing, and the denial of medical care for injuries inflicted during the misuse and abuse of force. The palintiff: seeks damages as to all claims, and an injunction to ensure proper medical care, This complaint allages that plaintiff was sexually assault~ □ ed and fondled by correctional staff, Whereas, the plaintiff has been possibly seriously injured/effectsad in his groin area’ (ceprodutive oxgan(s). Which could have a profound long term negative effect on the plaintiff. The plaintiff. [still has] _ pain in his perineum area, as well as, his testicles area, and, sometimes his pelvic area. ‘The plaintiff is being denied the □ adequate treatment for these areas complained about, as a direct effect of the defendant named herein's misuse of force. ARGUMENT In deciding whether to appoint counsel for an indigent litigant, the court snmould consider "the factual coltplexity of the case, the ability of the indigent to investigate the facta, the existence of conflicting testimony, the ability of the indigent to present his claim, and the complexity cf the legal issues” (Abdullah v. Gunter, 949 F 24 1032, 1035(Bth Cir. (citation omitted). In addition, the covrts have suggested that the most important factor is whether the case appears to have merit (Carmona v. U.S. Bureau of Prisons, 243 F. 3d 629 , . (2a Cir. 2001). Hach of these factors weighs in favor of the appointment of counsel in this cage, co FACTUAL COMPLEXITY: ‘he-plaintiff alleges he was sexually assaulted and fondled by staff, while others stood by and | watched. He also asserts supervisors were immediately notified, and did nothing about the incident. He also challenges that, the denial of medical care was "down played" after the inci~. dent by other defendants. Finally, he makes other claims, including the denial of due process being one of them. The sheer number of claims and defendants makes this a factually complex case, oe . □□ Case 7:16-cv-07360/-VB-LMS Documentifl Filed Uo/lo/eU Page % OF f □ In addition, one of the plaintiff's claims involves the - certain denials of medical care, it will probably be necessary to present medical expert testimony, or, to cross~examine med- - . ical witnesses of defendants, or both. The presence of medical or other issues requiring expert testimony support the appointof counsel (Montgomery v. Pinchak, 2294 F.30° 492, 563-04 (34 Cix. 2002); Moore v, Mabus, 976 F. 20 268, 272 (5th Cir. 1992); Jackson v. County of McLean, 953 F. 2d 1070, 1673 (7th Cir. 1992). : 2) THE PLAINTIFF'S ABILITY TO INVESTICAPE: the plaintiff is incarcerated, and has no ability to investigate the facts. Por example, he is unable to identify and locate, and interview the offenders who were present, and who saw gome or all of the misuse of force, He is in the same situation with regard to □ developing facts as an offender who has bean transferred to a different Facility, a factor several courts have cited in appointing counsel ( Tucker v. Randall, 948 FP. 24 391+92 (7th Cir. 1991); Gatson v. Coughlin, 679 F. Supp. 270, 273 (W.D.N.Y. 1998). In addition, this case will require considerable disco- . very concerning the idantity of witnesses, tha officer's reports, and statements about the incident, and prior history of misuse of Force involvement with defendants named herein, and the plaintiff's medical (Parham v. Johnson 126 F.3d 454, 459 (3d Cir. 1997) (holding counsel should have been appointed, because "pri- □ sonere’s lack of legal experience, and the complex discovery rules clearly put offender at a disadvantage in countering defense discovary tactics... these [discovery] rules prevented [the plaintif£} from presenting an effective case below"). 3) CONFLICTING TESTIMONY: The plaintiff's account of his gexual assault and fondling by defendants, is so in conflict with the statements of the defendants. This aspect of the case . be a credibility contest between defendants and the plaintiff(and each inmate witness as can be located). The existence □ - of these credibility issues supports the appointment of counsel | (Steele v. Shah, 87 F. 3d 1266, 1271 (tith Cir. 1996): Gatson v. Coughlin, 769 F. Supp. @ 273). . _ 4) ABILITY OF THE INDIGENT TO PRESENT HIS CLAIM: The plain- €if£ is an indigent prisoner with no legal training, a factor Case f.10-cv-O/s0/-VEB-LMo Documentift Fed Uo/LoizU Frage sOrr □ supports appointment of counsel (Forbes v. Edgar 262, 264 (7th Cir. 1997). In addition, he is incarcerated with very limited access to the law library as a factor supporting appoint- □ ment of counsel (Rayes v. Johnson, 969 F. 2d 700, 703-04 (8th Cir. 1992), 5) LEGAL COMPLEXITY: The large number of defendants, some who are supervisory officials, presents complex issues of de~ : terming which defendants are sufficiently personally involved din the Constitutional violations to be held liable (Hendricks v. Coughlin, 114 F. 34 390, 394 (2d Cir. 1997) (Holding complexity of supervisor Liablity supported appointment of counsel). In ‘ addition, the plaintiff has asked for a jury trial, which requir- □ much greatex legal skiil than the plaintiff has, or can de~- velop(solis v. County of Los Angeles, 514 3d 946, 958(9th Cir. 2008)(Prisoner of 8th Grade education and no legal’ train-~ ing, is "ill-suited" to conduct a jury trial.). , 6) MERIT OF THE CASE: The plaintiff's allegations, if proved, clearly would establish a constitutional violation. . The unprovoked and injurious sexual assault and fondling alleged in the complaint clearly states an 8th amendment violation (fudson v. MeMillian, 503 U.S. 1 , 112 S. Ct. 995 (1992). ‘the allegations of denial of medical care amount to “intentionally interfeing with the treatment once prescribed", which the Supreme Court has specifically cited as an example of unconstitutional deliberate indifference to a prisoner's medical neads (Estelle v. Gaible, 429 U.S. 97, 105 ,. 97 S. Ct. 285 (1975}. CONCLUSION □ ‘For the foregoing reasons, the court should grant plain- □ tiff's motion, and appoint counsel in this cage. pated: Jone tI, 2G225 GAA MOurivckéin Vann 3. . Case /:16-cv-0730/-VB-LMS Documentifi riled Uo/ib/zU) Frage o OF & UNITED STATES DISTRICT COURT Ip 8 [n) SOUTHERN DISTRICT OF NEW YORK YUN 16 2909 fi eo fey at tt et 3 tr 8 of kd en pp pd Od L wee ot Kouriockein Vann, : P RA O Ss Petitioner, i SE OFFICE □ _ AFFIRMATION OF S CE vs, Case No. 16cv7367 Y. Sudranski, et al., Respondent eee en eee neem nennnmnewenennnne I, Kouriockein Vann, declare under penalty of perjury that I have served a copy of the attached appointment of counsel motion, with supporting affidavits upon the below named party: NYS Attorney General Office Attn: Court Clerk 44 So. Broadway Southern District Federal Court White Plains, NY 10601 500 Pearl Street New York, NY 10007 I, Kouriockein Vann, declare under penalty of perjury that the above statements are true and correct. Dated: June 11, 2020 Fallsburg, New York Resp lyS$ □□□□□□ fi Kouriockéin Vann epee. By 2 FOF @ □ ro. = m N BOS “es A ox . © 6 Bt Gen: 2. a jh 2 | oO . QoQ 2° As : - 2 wa a. 0. mz : □ : 5 ~< oof ; O za ~~ 9 x ae ' : 5 Ps a 5B os = : 1 = : Om , 2 □□□ . dh = + : a 2 wo . Q Se, a = i - = 5 , . 8 om 5 >. □ Ee. A =" o : Ay bry me Sogo 1 £066 a0 ap a cr, Meg > any bE Oe — Po ry JR 4 te , th. co . wr HI ay. . OD . NS □ eect ei oO 4 OE □□ i ct tw Root © 1 2 Be eon Cr : ap i OQoodrood ns © QrQ rh 33 fy Sct rh ms of oe wd ® fee 4} v4, . oon 2 ee Reg . Ph i oO wy i el ° = ct > De ’ , i~ end □□ mo . 0 = g = rg i : Q = 5 4 □ nw a os BU racy BREE pay oe giles Bat 1G □ f EL Fheanemeeg Bs A Bee nd o . Mp, ie | RAE TA a $ iggy . eae □□ fpatacs BUA, : So eS cywn RRS ey . Bes id : te Us Fi og LPH iO pe :