United States District Court, S.D. New YorkAug 20, 2007
07 Civ. 2166 (PAC) (KNF) (S.D.N.Y. Aug. 20, 2007)

07 Civ. 2166 (PAC) (KNF).

August 20, 2007


KEVIN FOX, Magistrate Judge

Joseph Afflic ("Afflic") commenced this action pro se, pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act ("ADA"). Afflic has made an application to the Court that counsel be appointed to assist him in connection with the instant action. His application is addressed below.

Afflic, who is confined to a wheelchair, contends that, on January 1, 2007, after taking a shower at the North Infirmary Command ("NIC") dormitory at the Riker's Island jail facility, where he was housed as a detainee, he fell on a shower floor, lacking a sufficient number of mats, as he was transferring from his shower chair, which "tilted," to his wheelchair. As a result, Afflic alleges he injured his "tail bone, lower back and right hip." According to Afflic, corrections personnel, who came to Afflic's assistance, directed him to remain on the shower floor until medical personnel, who were summoned, could arrive and assist him. Afflic maintains he waited on the cold, tiled shower floor for one-half hour awaiting the arrival of medical personnel. Afflic has since been transferred to the Franklin Correctional Facility, in Malone, New York.

Afflic contends the conditions at NIC do not comply with Title II of the ADA. Examples of the noncompliant conditions Afflic observed at NIC include, inter alia, the following: (1) "the showers and stalls;" (2) beds that are not stationary; (3) inadequate space between the beds, through which wheelchairs must maneuver; and (4) narrow hallways. Afflic alleges that, although these noncompliant conditions have been brought to the attention of appropriate Riker's Island officials, no curative action has been taken, evidencing to Afflic the defendants' "deliberate indifference" to "dangerous conditions."

Unlike criminal defendants, prisoners, such as Afflic, 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) speaks.

"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," Stewart v. McMickens, 677 F. Supp. 226, 228 (S.D.N.Y. 1988), that the claim(s) asserted by the plaintiff "may have merit," Vargas v. City of New York, No. 97 Civ. 8426, 1999 WL 486926, at *2 (S.D.N.Y. July 9, 1999), or that the "[plaintiff] appears to have some chance of success. . . ."Hodge, 802 F.2d at 60-61.

A plaintiff seeking redress through 42 U.S.C. § 1983 is required to establish a violation of a federal constitutional or a statutory right occurred. See Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 1359 (1997). In addition, "[a] complaint based on a violation under Section 1983 that does not allege the personal involvement of the defendant is fatally defective on its face." Jones v. Nassau County Sheriff Dept., 285 F. Supp. 2d 322, 325-326 (E.D.N.Y. 2003) (internal quotations omitted) (dismissing the claim of a prisoner who fell in a shower that was not equipped with mats, because the prisoner failed to allege prison officials were involved in the incident or knew about the lack of mats and permitted the condition to persist.).

In the instant case, Afflic does not allege that any member of the jail facility's staff was personally involved in his January 1, 2007 fall. Moreover, Afflic's complaint does not appear to allege that the defendants violated a federal constitutional or statutory right in connection with his fall. Rather, Afflic's complaint seems to allege a common-law tort claim with respect to events occurring at the NIC shower.

Afflic alleges that his rights under the ADA were violated. Title II of the ADA provides, in pertinent part, the following: "Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Accordingly, an action brought under Title II of the ADA, by a detainee or prisoner, must contain a claim that, among other things, the plaintiff was excluded from or was denied services or programs at the correctional facility because of his or her disability. See Carrasquillo v. City of New York, 324 F. Supp. 2d 428, 443 (S.D.N.Y. 2004).

In the case at bar, Afflic has not alleged he was excluded from or denied any of the services, activities or programs offered at NIC or Riker's Island because he is a person with a disability. As a consequence, based on the face of Afflic's complaint, it does not appear that Afflic's ADA claim may have merit. See Vargas, 1999 WL 486926, at *2.

In a circumstance such as this, where the merits of the claims are suspect, the Court finds that the appointment of counsel is not warranted in order for a just determination to be reached. Accordingly, the plaintiff's application, for the appointment of counsel (Docket Entry No. 3), is denied.