Palazzolo v. C.O. Mitchell et al, No. 1:2012cv01617 - Document 24 (S.D.N.Y. 2013)
Court Description: OPINION AND ORDER: Plaintiff's motion is granted and the Court's Pro Se Clerk is directed to add plaintiff's case to the list of cases considered by the Court's Pro Bono Panel. (Signed by Magistrate Judge Henry B. Pitman on 2/1/2013) Copies Mailed By Chambers. (ft)
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"'......' I'. ._..... u'...... t"'*'~,.... ~~\~ ......n.., ......'t 4Of~.............. ... USDC SD~'Y , .' ¢.o . ~ J. 00('1UMr:r"I""i' UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - ---------------- --- --- -------x fi N, " ,f :r;-"'q':1'1 ... ~ ~ EI..~Ci""ri Ii f\,7~ *. I , DOC #: .= )i; ¢ .... ¢ ¢ ¢ DJlI'E l::n..ED: ..LL!iLJ__ !t ~ f'''I 410"\.""" ,~~....".,.l' J:o, T""IJ' -,.1.",}.. , ....... \'j ......} .,1 ¢ ¢~ '~ ~.;~ ~~..t"~ GEORGE PALAZZOLO, Plaintiff, 12 ci v. 1617 (BSJ) (HBP) OPINION AND ORDER -agai nst- ~ CORRECTION OFFICER MITCHELL, al. , Defendants. -----------------------------------x PITMAN, United States Magistrate Judge: By notice of motion dated February 24, 2012 (Docket Item 3), plaintiff seeks to have his case added to the list of cases considered by the Court's Pro Bono Panel. l 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 r private lIn 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 rees to represent the plaintiff, there is nothing more the Court can do. See generally Mallard v. United States District Court, 490 U.S. 296 (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. counsel, [plaintiff's] efforts to pbtain a lawyer, the availabil r the facts of counsel, and the plaintiff's ability to i and deal with the issues if unassisted by counsel." Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). factor which command[s] Id. ; F.3d 85, 88 ( Court of Of se, "[ t] he most attention [is] the merits." Odom v. Sielaff, 90 C (S.D.N.Y. Apr. 26, 1996) Cooper v. A. (Batts, Cir. 2003). . 7659 (DAB), 1996 WL 208203 J.); As not see w" ¢ ¢ y v. H~~~n, 366 fifteen years ago by the s: Courts do not perform a useful service if appoint a volunteer lawyer to a case which a pr lawyer would not take if it were brought to his or her atten tion. Nor do courts perform a soc justified function they request the se ces of a volunteer lawyer for a merit ss case that no lawyer would take were plaintiff not indigent. Cooper v. A. Sargenti Co., supra, 877 F.2d at 174; see also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) dec ng whether to appoint counsel . should first determine whether the i ("'In . the district judge gent's position seems likely to be of substance. '''). The Court of Appeals for the Second Circuit has stated in various ways the applicable standard for assessing merits of a pro se lit tIs cl In Hodoe [v. Police Officers, 802 F.2d 58 (2d Cir. 1986)], [the court] noted "[e]ven where the c im is not frivolous, counsel is often unwarranted where the indigent's s of success are extremely slim," and sed that a district judge should determine whether 2 to be of the pro se l i t ' s "position seems like substance," or showed "some chance of success." Hodge, 802 F.2d at 60-61 (internal quotation marks and cita tion omitted). In [the court] reiterated the importance of requiring indigent litigants seeking appointed counsel "to first pass the test of likely merit." 877 F.2d 170, 173 (2d Cir. 1989) (per curiam). Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 204 (2d Cir. 2003). s is an excessive force case arising out of an altercation that took New York ace while plaintiff was in the custody of ty Department of Corrections and incarcerated at the Manhattan Detention Center. The compl al s the following facts: I was at ticket court for a minor ticket[.] [W]hen I was done[,] a female officer named Crawley came to escort me back to housing area. Right away started going on about my sneakers[.] [S]he s they were red you can't have red. I said no the[y're] maroon not red. [T]he I said besides that the[y're] PUMA'S[,] I had them in two jails before this one and they said nothing. [T]hat's when she started using words like cracker, white trash and nazi to me for no reason. She took me back to the ticket areal,] where she had some words with officer Mi 11[,] [w]ho then to me wanted to talk to me. But then he said let's go into gym. I didn't know it at the time, but [there are] no cameras in the gym. He put his hands up in a fight stance and so did 1[,] just so I wouldn't get hit in the face. But [I] never saw what was coming up behind me. [T]he two John Doe off r[s] were coming up behind me and they both hit me at the same time in the head, knocking me down then the four of them began kicking me [including] the female correc tion officer Crawl [Tlhey were ki ng me in face, head, and body very hard[;] there was a lot of 3 blood. I was out cold. Then the EMT'S came and dragged me out of the gym full of blood. No one else saw what happened. (Complaint at 3). Plaintiff's complaint goes on to state that plaintiff's injuries included several broken ribs, a broken nose and that three of plaintiff's teeth were knocked out (Complaint at 3). Annexed to the complaint are medical records confirming that plaintiff suffered broken ribs and a broken nose and that plaintiff was hospitalized for four days as a result of the altercation. Plaintiff signed the complaint under penalty of perjury and declaring it to be true and correct, thereby giving it the probative weight of an affidavit. The case is a close one. See 28 U.S.C. § 1746. Although the medical records confirm that a serious altercation took place, plaintiff clearly must show more than that to prevail, namely that the force used was excessive and unjustified. The only evidence on that issue consists of plaintiff's own statements, made under penalty of perjury. Although the answer generally denies the allegations in the complaint and alleges that any force used was justified, it provides no specifics. Given the seriousness of the injuries that plaintiff suffered, I conclude that he has shown sufficient merit to have his case added to the list of cases considered by the Pro Bono Panel. Although it is not for me to decide the ultimate merits 4 of plaintiff's allegations, the seriousness of plaintiff's injuries suggests that this matter involves more than a minor scuffle, a few punches or an aggress a group of corrections officers. In reaching this conclusion, I emphasize that I am not making any anyone. take down of an inmate by nding of any wrongdoing by All I am concluding is that at this early stage, plain tiff has shown enough potential merit to have his case considered by the Court's Pro Bono Panel. Accordingly, plaintiff's motion is granted and the Court's Pro Se Clerk is directed to add aintiff's case to the list of cases considered by the Court's Pro Bono Panel. Dated: New York, New York February 1, 2013 SO ORDERED /'?~ ~~---~~ HENRY PImAN United States Magistrate Judge Copies tran tted to: Mr. Geo Palazzolo DIN 12-A-0751 Attica Correctional Facility P.O. Box 149 Attica, New York 14011-0149 Aimee K. Lulich, Esq. Assistant Corporation Counsel City of New York 100 Church reet New York, New York 10007 5
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