Casiano v. Smalls

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ANTHONY CASIANO, Plaintiff, v. WARDEN KISA SMALLS; CORRECTIONAL OFFICER RUCKER, # 2398; CAPT. 19 Civ. 5226 (KPF) THEAGERE, # 4016; CORRECTIONAL ORDER OFFICER K. LUTON, # 5144; DEPARTMENT OF CORRECTION; NEW YORK CITY, CORRECTIONAL OFFICER FOOT, #5509, and CAPTAIN THEAGRE, #1851, Defendants. KATHERINE POLK FAILLA, District Judge: The Court is in receipt of Plaintiff’s letter, docketed December 9, 2019 (Dkt. #40), notifying the Court that Plaintiff has been transferred to a new facility and may not be able to attend the initial pretrial conference scheduled for December 17, 2019. Accordingly, that conference is hereby ADJOURNED to January 7, 2020, at 11:00 a.m. It is further ORDERED that at the appointed date and time for the conference, the Warden or other official in charge of the Auburn Correctional Facility, produce prisoner Anthony Casiano, Identification No. 19-A-2659, at a suitable location within the Auburn Correctional Facility equipped with a telephone, for the purpose of participating by telephone in the conference with the Court and defense counsel in the above referenced matter. If this time and date presents an inconvenience, the Warden or the Warden’s designee should promptly inform Chambers by calling (212) 805-0290. Counsel for Defendants must (1) transmit this Order to the Warden forthwith; (2) contact the Auburn Correctional Facility forthwith to arrange the

call, and to determine the telephone number at which Plaintiff will be reachable at the above time and date; and (3) telephone the Court with Plaintiff on the line at the time and date of the conference. At the appointed time, the parties shall call (888) 363-4749 and enter access code 6624801. Please note, the phone conference line will not be available prior to 11:00 a.m. The Court is also in receipt of Plaintiff’s renewed application for the Court to request pro bono counsel (Dkt. #37), after the Court denied an earlier

request for the same on July 15, 2019 (Dkt. #8). The factors to be considered in ruling on an indigent litigant’s request for counsel include the merits of the case, Plaintiff’s efforts to obtain a lawyer, and Plaintiff’s ability to gather the facts and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which command[s] the most attention.” Cooper, 877 F.2d at 172. The Court notes that Plaintiff

has taken the step of calling attorneys to see if they would represent him. However, the Court concludes that it remains too early in the proceedings for it to assess the merits of the action. The parties have yet to appear for an initial 2 pretrial conference and no discovery has occurred. Accordingly, Plaintiff's motion for counsel is denied without prejudice to renewal at a later date.

SO ORDERED. Dated: December 10, 2019 ' i] New York, New York Kathe loll. flr KATHERINE POLK FAILLA United States District Judge Sent by First Class Mail to: Anthony Casiano NYSID: 020104852 DIN No. 19A2659 Auburn Correctional Facility P.O. Box 618 Auburn, NY 13024