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Motion to Compel Discovery Denied for Not Conferring With Counsel

The plaintiff alleged excessive force, a disciplinary due process violation, and other varieties of abuse by prison staff.

The court denies appointment of counsel because the plaintiff has shown he can present the facts clearly and draft pleadings and motions backed by legal research, and the case does not present novel or overly complex legal issues.

The court denies the plaintiff's motion to compel because he did not satisfy the "meet and confer" requirement of local rules. The court says he hasn't shown he tried to "contact" the defendants and he didn't ask for a conference with the court before making the motion. See: Avent v. Solfaro, 210 F.Supp.2d 91 (S.D.N.Y. 2002) (Ellis, M.J.).

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Related legal case

Avent v. Solfaro

Avent v. Solfaro - 210 F.R.D. 91

United States District Court, S.D. New York.

Reuben AVENT, Petitioner,


SOLFARO, Supt., et al., Respondents.

No. 02 Civ. 914(RCC)(RLE).

Oct. 9, 2002.
*92 Reuben Avent, Attica, NY, pro se.
Thomas K. McCarren, Burke Miele & Golden, LLP, Suffern, NY, for respondents.


ELLIS, United States Magistrate Judge.

On February 6, 2002, pro se incarcerated plaintiff Reuben Avent ("Avent") filed this action pursuant to 42 U.S.C. § 1983, alleging *93 violations of the Eighth Amendment and of his right to procedural due process. Avent has named as defendants Superintendent Solfaro ("Solfaro"), Sergeant Gentillo ("Gentillo"), and Correctional Officer Washington ("Washington"). The alleged incidents occurred at the Rockland County Jail on July 23, 2001. Avent has requested that the Court appoint counsel for him. He also filed a motion to strike defendants' affirmative defenses, and a motion to compel discovery and for sanctions. For the reasons which follow, each of Avent's pending applications is DENIED.


Avent claims that on the morning of July 23, 2001, Washington told him that he could take his hour of recreation time plus an additional fifteen minutes. Complaint. Washington later allegedly told Avent to forget his recreation and ordered Avent to "lock in." Id. After locking into his cell, Avent claims he asked to speak with a sergeant. He asserts that Sergeant Gentillo arrived, saying, "I'm not in the mood for this shit," and sprayed mace in his face for thirty to forty seconds. Id. Avent was handcuffed by Washington, who allegedly shoved his face into the cell wall. Avent claims that Gentillo then ran his face into closed doors in order to open them as he was brought to the intake area. Id. Avent also alleges that he was placed in a dirty tank for several hours, handcuffed and left without a meal, and that he was not allowed to see a nurse or wash his face. He further claims he was not given a chance to clean his cell and was denied access to the law library. In addition, Avent claims his right to due process was violated because he was denied participation in a disciplinary hearing following this incident. Id. He asserts that he simply was informed of his punishment, including loss of visiting and commissary privileges. Avent asserts that Washington and Gentillo violated his constitutional rights by committing the above acts. He further alleges that Solfaro allowed the acts to occur and denied him his right to a disciplinary hearing and the right to learn the law. His alleged injuries include irregular breathing problems, a broken nose, loss of vision, headaches, and swelling of the eyes.


A. Appointment of Counsel

Civil litigants, unlike criminal defendants, do not have a constitutional right to the appointment of counsel. However, under 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." The Court of Appeals for the Second Circuit has articulated the factors that a court should consider in deciding whether to appoint counsel for an indigent civil litigant. The court "exercises substantial discretion, subject to the requirement that it be guided by sound legal principle." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir.1989) ( citing Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir.1983)). The court's first inquiry is whether plaintiff can afford to obtain counsel. See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir.1994). If the court finds that a plaintiff cannot afford counsel, it must then examine the merits of the case and determine whether the indigent's position "seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir.1986). After the two threshold determinations have been made as to indigence and merit, the court has discretion to consider the following factors: (1) the indigent's ability to investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the factfinder; (3) the indigent's ability to present the case; (4) the complexity of the legal issues involved; and (5) any special reason in that case why appointment of counsel would be more likely to lead to a just determination. Id. at 61-62.