Opinion
06 Civ. 15436 (JSR) (KNF).
January 5, 2010
MEMORANDUM and ORDER
I. INTRODUCTION
Philip Smith ("Smith"), proceeding pro se and in forma pauperis, commenced this action, pursuant to 42 U.S.C. § 1983, alleging that the New York City Police Department, Police Officer Manuel Cordova ("Cordova"), Sergeant Anibal Amaya ("Amaya"), Detective Forte ("Forte"), Detective Henry ("Henry"), and Detective Gill ("Gill"), violated his constitutional rights by shooting Smith in his back, while he was surrendering to "officers." As a result of being shot, Smith underwent kidney-removal surgery and reconstructive surgery to his stomach and intestines. Smith requests that the Court appoint counsel to him; the defendants have not opposed this request. Smith's application is addressed below.
II. BACKGROUND
In his amended complaint, Smith alleges that, on December 17, 2003, at approximately 7:00 p.m., he was on the tenth floor of 213 Nagle Avenue, in New York County, when he was shot in his back while he was surrendering to police officers. Smith contends Cordova was responsible for shooting him. Smith maintains that the defendants used excessive force against him, attempted to murder him, engaged in reckless endangerment and police brutality. Smith seeks monetary damages.
Attached to Smith's request, that the Court appoint counsel to assist him, are an affirmation and a memorandum of law supporting his request. In the affirmation, Smith contends "[t]his is a complex case" that "requires discovery of documents which are now some three years delinquent, and may concern obtaining confidential reports which are unavailable to the Plaintiff, obtaining affidavits from witnesses, and locating and securing witness testimony for the purpose of trial." Smith believes the trial testimony will be "in sharp conflict," and expects to rely upon "medical, ballistic and crime scene documentation" and "extensive cross-examination" to prove his claims. In addition, the plaintiff states that he "has no ability to investigate the facts of the case, i.e., locating and interviewing other witnesses who may be Police officers and Detectives of the NYPD who may have knowledge of the facts and circumstances surrounding Plaintiff's claim," and notes that he: (a) "has only a high school education and limited legal knowledge"; and (b) is incarcerated. Smith alleges he has made numerous attempts to secure counsel; however, his attempts were unsuccessful.
In his memorandum of law, Smith asserts that his case is likely to have merit since, when the facts alleged in his complaint are taken as true, he has stated a Fourth Amendment excessive force claim. In support, Smith explains that, while he was surrendering to police officers, he "placed his hand on the wall in hopes that he was demonstrating that he was no longer a threat and out of concern for his own safety. With his back turned and his hands clearly on the wall defendant Cordova shot him in the back causing life threatening injuries to his stomach area." Under these circumstances, according to Smith, using force against him constituted an unreasonable seizure, in violation of his Fourth Amendment rights.
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. The 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 some merit, 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 Smith, 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).
Where a plaintiff satisfies the threshold requirement of demonstrating that the plaintiff's position is likely to be of substance, the court should then consider: (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 fact-finder; (3) the indigent's ability to present the case; (4) the complexity of the legal issues; and (5) any special reason in that case why appointment of counsel would be more likely to lead to a just determination.Hodge, 802 F.2d at 61-62.
Liberally construing the plaintiff's complaint, see Burgos, 14 F.3d at 790, the Court finds that Smith seeks to claim a violation of his Fourth Amendment rights, based upon the injury to his person, caused by police officers, while he was attempting to surrender to them. "Determining whether the force used to effect a particular seizure is `reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake."Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871 (1989) (internal quotation marks and citations omitted); see also Phelps v. Szubinski, 577 F. Supp. 2d 650, 661 (E.D.N.Y. 2008) (quotingGraham). Application of the "reasonableness" standard in this context "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S. Ct. at 1872; see also Amnesty America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir. 2004) (quoting Graham). "`The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'" Phelps, 577 F. Supp. 2d at 661 (quotingGraham, 490 U.S. at 396, 109 S. Ct. at 1872).
Looking solely to the face of the pleadings, it appears that the plaintiff's Fourth Amendment excessive force claim may have merit. The plaintiff's factual allegations provide sufficient details to show that he suffered pain and injury-a kidney removal and reconstructive surgery to his stomach and intestines, resulting from his gunshot wound- and, the actions by police officers do not appear "reasonable." Based on Smith's account of the events, he was shot in his back while he was surrendering to police officers inside an apartment unit located on the tenth floor of the apartment building. Considering the factors listed in Graham, while the complaint does not provide any details about the "severity of the crime at issue," Smith alleges that he was surrendering at the time he was shot, which suggests that he did not "pose[] an immediate threat to the safety of the officers or others," nor does the complaint indicate that Smith was, in any way "actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S. Ct. at 1872. In fact, according to Smith's application for appointment of counsel, he was shot by Cordova while Smith's "back [was] turned and his hands [were] clearly on the wall," which suggests further that Smith was not threatening the safety of police officers, nor was he in a position suggesting he was resisting arrest or fleeing to evade arrest. In addition, to the extent Smith seeks compensatory damages for his injuries, it appears that he expects to present medical evidence and testimony showing that "his injuries were proximately caused by the constitutional violation," and thus would be eligible for the type of relief he seeks. Atkins v. New York City, 143 F.3d 100, 103 (2d Cir. 1998).
The Court has considered the various factors noted in Hodge, because the plaintiff has satisfied the threshold requirement of demonstrating that his Fourth Amendment claim, based upon the use of force against him, may have merit. Since the plaintiff is currently incarcerated, he may experience difficulty investigating the facts surrounding his claims and obtaining interviews with, and information from, police officials and other witnesses. The plaintiff's Fourth Amendment claim presents complex issues involving whether the defendants' actions rose to the level of a constitutional deprivation. The record before the Court does not indicate the plaintiff possesses any particular knowledge or skill that would enable him to analyze or present these issues. The plaintiff has also alleged, in his application for counsel, that he has attempted to obtain counsel, but has been unable to secure representation.
Having considered the factors outlined in Hodge, supra, the Court finds that appointment of counsel, in the circumstance of this case, would be reasonable and appropriate. Such an appointment would be more likely to lead to a just determination of the claims the plaintiff has made.
Accordingly, the plaintiff's application for the appointment of counsel, Docket Entry No. 44, is granted. The Pro Se Office for this judicial district is directed to request pro bono counsel for the plaintiff in accordance with the Pro Bono Panel's procedures. The plaintiff is advised that, until counsel is appointed, he continues in pro se status and, accordingly, must continue to represent himself.
SO ORDERED: