Negron v. Matthews

          RULING ON PENDING MOTIONS

          STEFAN R. UNDERHILL, UNITED STATES DISTRICT JUDGE

         The plaintiff, Ricardo Negron (“Negron”), is incarcerated at the MacDougall-Walker Correctional Institution (“MacDougall-Walker”). He initiated this action by filing a complaint under 42 U.S.C. § 1983 against Correctional Officer Matthews. On October 16, 2017, pursuant to my review of the complaint under 28 U.S.C. § 1915A, I dismissed the claim for monetary damages and declaratory relief against the defendant in his official capacity and dismissed the claim under the Prison Rape Elimination Act (“PREA”) against the defendant in his individual capacity. See Initial Review Order (“IRO”), ECF No. 7, at 5. I concluded that the Eighth Amendment claims for sexual harassment and deliberate indifference to safety would proceed against the defendant in his individual capacity. See id.

         On July 19, 2018, I granted Negron leave to file an amended complaint to add new defendants. On August 2, 2018, Negron filed an amended complaint naming Warden Mulligan, Deputy Warden Jesus Guadarrama and Correctional Officer Sean Matthews as defendants. See Am. Compl., ECF No. 19. Pending before the court is a motion to dismiss the amended complaint filed by Officer Matthews and a motion for appointment of counsel filed by Negron. For the reasons set forth below, the motion for appointment of counsel is denied, the motion to dismiss is granted and the claims in the amended complaint that are asserted against Deputy Warden Guadarrama and Warden Mulligan are dismissed.

         I. Motion for Appointment of Counsel [ECF No. 21]

         Negron seeks the appointment of pro bono counsel. In the motion, Negron describes his claims as a denial of needed medical treatment. As indicated above, however, this case involves a claim that a correctional officer sexually harassed Negron. In support of the motion, Negron states that he has “mental health” and cannot afford to hire an attorney.

         Civil litigants do not have a constitutional right to the appointment of counsel. See Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986) (district judges are afforded “broad discretion” in determining whether to appoint pro bono counsel for an indigent litigant in a civil case); 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford counsel.”) (emphasis added). In addition, the Second Circuit has repeatedly cautioned the district courts against routinely appointing pro bono counsel. See, e.g., Hendricks v. Coughlin, 114 F.3d 390, 393 (2d Cir. 1997); Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989).

         In considering whether to appoint pro bono counsel for an indigent litigant, a district court must “determine whether the indigent's position seems likely to be of substance.” See Hodge, 802 F.2d at 61. “[E]even where the indigent [litigant's] claim is not frivolous, counsel is often unwarranted where the [litigant's] chances of success are extremely slim.” Cooper, 877 F.2d at 171; see also Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (denying counsel on appeal where petitioner's appeal was not frivolous but nevertheless appeared to have little merit).

         Although I have determined that the allegations in the complaint are not frivolous, I cannot conclude at this time that Negron is likely to succeed on the merits of the claims asserted in the complaint or the amended complaint. Additionally, Negron has made insufficient efforts to secure legal assistance or representation on his own. See Hodge, 802 F.2d at 61 (indigent litigant must demonstrate that he or she is unable to obtain counsel or legal assistance independently before a district court will appoint pro bono counsel).

         In September 2017, Negron contacted Attorney Michael Peck, Yale's Legal Services Organization, and the American Civil Liberties Union. He states that he did not receive a response to his letter from the American Civil Liberties Union. It is unclear whether Yale Legal Services or Attorney Peck responded to Negron's letters or telephone calls. Although the Inmates Legal Aid Program (“ILAP”) may not be able to represent Negron, the program attorneys may be available to assist him in litigating the case. I conclude that Negron has not made sufficient recent attempts to secure representation or assistance independently. Nor has he demonstrated that the Inmates' Legal Aid Program is unavailable or unwilling to assist him. Accordingly, the motion for appointment of counsel is denied.

         II. Motion to Dismiss [ECF No. 20]

         Officer Matthews raises one argument in support of his motion to dismiss. He contends that the allegations in the amended complaint regarding the isolated incident involving sexual verbal harassment by him do not state a claim under the Eighth Amendment because the alleged conduct is not sufficiently severe or repetitive.

         A. Standard of Review

         When ruling on a Rule 12(b)(6) motion to dismiss, the court “accepts as true all of the factual allegations set out in [the] complaint, draw[s] inferences from those allegations in the light most favorable to the plaintiff, and construes the complaint liberally.” Roth v. Jennings, 489 F.3d 499, 510 (2d Cir. 2007) (internal quotation marks and citation omitted). In addition to the facts set forth in the complaint, the court may also consider documents either attached to the complaint or incorporated into it by reference, “and matters subject to judicial notice.” New York Pet Welfare Ass'n, Inc. v. City of New York, 850 F.3d 79, 86 (citation omitted), cert. denied, ___ U.S. ___, 138 S.Ct. 131 (2017).

         To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when ... plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Id. The plausibility standard is not the equivalent of a probability standard but requires something more than the assertion of allegations suggesting the mere possibility that the defendant engaged in unlawful conduct. See Id. Legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a plausible claim for relief. Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

         “Where ... the complaint was filed pro se, it must be construed liberally with ‘special solicitude' and interpreted to raise the strongest claims that it suggests.” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). Nevertheless, a pro se plaintiff's complaint still must state a plausible claim for relief. Id. (citations omitted).

         B. Facts

         The amended complaint includes the following facts. On February 28, 2017, prison officials placed Negron on suicide watch and confined him in a cell in the restrictive housing unit at MacDougall-Walker. Am. Compl. ¶ 1. At some point between 1:00 p.m. and 3:00 p.m., Officer Matthews opened the trap in Negron's cell door, placed a piece of paper in the trap and made sexual comments towards Negron. Id. ¶ 2. Negron became upset and swore at Officer Matthews. Id. ¶ 3. In response, Officer Matthews reached his hand into the trap. Id. ¶ 4. Negron backed up and yelled out for Control Officer Brisco. Id. Control Officer Brisco notified Lieutenant Beebe. Id.

         When Lieutenant Beebe came to Negron's cell, Negron stated that he wanted to file charges against Officer Matthews, including a complaint under the PREA, and handed Lieutenant Beebe a completed inmate request form and a grievance form. Id. ¶¶ 4-5 & at 13-15. Negron states ...