Damon Scott v. Michael Capra

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DAMON SCOTT, Petitioner, ORDER -against- 23 Civ. 3923 (KMK) (AEK) MICHAEL CAPRA, Respondent.

THE HONORABLE ANDREW E. KRAUSE, U.S.M.J. The undersigned is in receipt of a letter from Petitioner, seeking an extension of time to file his reply papers and the appointment of pro bono counsel. See ECF No. 38. First, Petitioner’s request for an extension of time to March 1, 2026 to serve and file his reply papers is GRANTED. Second, with respect to the application for the appointment of pro bono counsel, the Court considers the factors set forth in Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986), which provides the standard that courts in this Circuit use to determine whether appointment of counsel in a civil matter is appropriate. Under this standard, a court must first determine “whether the indigent’s position seems likely to be of substance.” Id. at 61. If an application meets this threshold requirement, the district court must further consider the petitioner’s ability and efforts to obtain counsel, as well as “his [or her] ability to handle the case without assistance in [] light of the required factual investigation, the complexity of the legal issues, and the need for expertly conducted cross-examination to test veracity.” Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989); Hodge, 802 F.2d at 61-62. Petitioner has not satisfied the Hodge factors. First, the Court does not have a sufficient basis to conclude at this point that Petitioner’s claims “ha[ve] substantial merit.” Garcia v. USICE (Dep’t of Homeland Sec.), 669 F.3d 91, 98 (2d Cir. 2011). The Antiterrorism and Effective Death Penalty Act (“AEDPA”) sets a strict standard of review for Federal courts reviewing the decisions of State courts: if an application for a writ of habeas corpus is to succeed, the State court proceeding must have resulted in “a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law,” or “a decision based on unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1)-(2). In addition, a determination of a factual issue made by a State court is presumed to be correct. 28 U.S.C. § 2254(e)(1). While this Court makes no final determination regarding the merits of the Petition at this time, the Court has conducted a preliminary review of the parties’ submissions for purposes of resolving the request for appointment of counsel. Based on this initial review, Petitioner’s claims do not appear to satisfy the stringent requirements required to obtain habeas relief under the AEDPA, and the Court cannot conclude at this time that Petitioner has made a threshold showing that his claims have substantial merit.

Moreover, at this time, Petitioner also does not satisfy the other factors enumerated in Hodge. The second Hodge factor concerns Petitioner’s ability and efforts to obtain counsel. Petitioner has not shown that he has made any effort to retain pro bono counsel to represent him in this matter. In addition, Petitioner fails to demonstrate his qualification under the third Hodge factor—an inability to handle the case without assistance. To the contrary, Petitioner has shown in his filings that he is capable of engaging with the law and challenging his incarceration. Petitioner’s submissions to the Court do not suggest an inability to proceed in this matter without the assignment of counsel. See Maxwell v. New York Univ., 407 F. App’x 524, 528 (2d Cir. 2010) (summary order) (“the district court did not abuse its discretion in denying appointed counsel because [the plaintiff] had demonstrated an ability to file and respond to motions and otherwise to prosecute his action”).! Accordingly, for the reasons stated above, Petitioner’s application for the appointment of pro bono counsel is DENIED WITHOUT PREJUDICE. The Clerk of Court is respectfully directed to mail a copy of this order to the pro se Petitioner. Dated: November 3, 2025 White Plains, New York SO ORDERED.

ANDREW E. KRAUSE United States Magistrate Judge

' A copy of this unpublished decision is attached to this Order.

407 Fed.Appx. 524 and This case was not selected for publication in West's Federal Reporter. denial of pro bono counsel to student was not an abuse of RULINGS BY SUMMARY ORDER DO NOT HAVE discretion. PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY Affirmed. 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 Procedural Posture(s): On Appeal; Motion for Summary AND THIS COURT'S LOCAL RULE 32.1.1. WHEN Judgment. CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST *525 Appeal from the United States District Court for the CITE EITHER THE FEDERAL APPENDIX OR AN Southern District of New York (Harold Baer, Jr., Judge). ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A UPON DUE CONSIDERATION, IT IS HEREBY SUMMARY ORDER MUST SERVE A COPY OF IT ON ORDERED, ADJUDGED, AND DECREED that the ANY PARTY NOT REPRESENTED BY COUNSEL. judgment of the district court entered on June 3, 2009, is United States Court of Appeals, Second Circuit. AFFIRMED. Milford Benjamin MAXWELL, Attorneys and Law Firms Plaintiff–Counter–Defendant–Appellant, Milford Benjamin Maxwell, Brooklyn, NY, pro se. v. NEW YORK UNIVERSITY, Christopher Connelly, Nancy Kilson, Associate General Counsel, for Bonnie Brier, Defendants–Counter–Claimants–Appellees.* General Counsel, New York University, New York, NY, for Appellee. * The Clerk of the Court is directed to amend the PRESENT: REENA RAGGI, DEBRA ANN LIVINGSTON caption to read as shown above. and DENNY CHIN, Circuit Judges. No. 09–2898–cv | SUMMARY ORDER Dec. 8, 2010. Plaintiff Milford Benjamin Maxwell, pro se, appeals from an Synopsis award of summary judgment in favor of defendants New York Background: Student sued university, claiming that University (“NYU”) and Christopher Connelly on plaintiff's cancellation of his financial aid award violated the Military claims that NYU's cancellation of his financial aid award for Selective Service Act (MSSA) and the Americans with the 2005–06 academic year violated the Military Selective Disabilities Act (ADA). The United States District Court Service Act (“MSSA”), 50 U.S.C. app. § 451 et seq., and the for the Southern District of New York, Harold Baer, Jr., Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 J., granted summary judgment against the student, and he et seq. Maxwell also appeals the district court's denial of his appealed. requests for pro bono counsel and for an order either holding NYU's counsel in contempt or imposing discovery sanctions based upon NYU's failure to respond to Maxwell's discovery Holdings: The Court of Appeals held that: requests. We assume the parties' familiarity with the facts and the record of prior proceedings, which we reference only as student's MSSA claim was barred by his failure to exhaust his necessary to explain our decision to affirm. administrative remedies; *526 1. Summary Judgment on the MSSA and ADA Claims the facts in the light most favorable to the non-moving party. Service registration requirement. Educational institutions are See Havey v. Homebound Mortg., Inc., 547 F.3d 158, 163 responsible in the first instance for determining whether a (2d Cir.2008). Summary judgment is appropriate where the student who did not register with the Selective Service is record shows “that there is no genuine issue as to any material nonetheless eligible for federal assistance under § 462(g). See fact and the movant is entitled to judgment as a matter of 34 C.F.R. § 668.37(d). A student who is denied assistance law.” Fed.R.Civ.P. 56(a); see also FDIC v. Great Am. Ins. on the basis of his Selective Service registration status may Co., 607 F.3d 288, 292 (2d Cir.2010). Summary judgment seek a hearing before the Secretary of Education by filing a determines only issues of law and does not impair the right to request in writing “within the award year for which it was a jury trial. See Benjamin v. Traffic Exec. Ass'n E. R.Rs., 869 denied ... assistance or within 30 days following the end of F.2d 107, 115 n. 11 (2d Cir.1989) (“Plaintiffs cannot attack the payment period, whichever is later.” Id. § 668.37(f)(2) summary judgment decisions as inimicable to the seventh (ii). At the hearing, the student “retains the burden of proving amendment.”). Having conducted an independent and de compliance, by credible evidence,” with the registration novo review of the record in light of these principles, we requirements. Id. § 668.37(f)(3). affirm the district court's grant of summary judgment for substantially the reasons stated by the district court in its “The doctrine of exhaustion of administrative remedies thorough and well-reasoned decision. is well established in the jurisprudence of administrative law.” *527 Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (internal quotation marks a. MSSA omitted). “The doctrine provides that no one is entitled The district court correctly determined that, under the to judicial relief for a supposed or threatened injury until circumstances of this case, a student who is denied federal the prescribed administrative remedy has been exhausted.” financial assistance by an educational institution due to Id. at 88–89, 126 S.Ct. 2378 (internal quotation marks his Selective Service registration status must exhaust his omitted); see also Bastek v. Fed. Crop Ins. Corp., 145 administrative remedies before filing suit in federal court.1 F.3d 90, 93 (2d Cir.1998) (“In general, exhaustion of administrative remedies is the rule....”). Where a statute 1 Because we conclude that Maxwell's failure to does not explicitly require exhaustion, we must “exercise exhaust his administrative remedies precludes suit discretion and balance the interest of the individual in in federal court, we do not consider whether 50 retaining prompt access to a federal judicial forum against U.S.C. app. § 462(g) implies a private right of countervailing institutional interests favoring exhaustion.” Id. action. at 94 (internal quotation marks omitted). We have previously described the circumstances under which waiver of the The MSSA provides that a person who is required to register administrative exhaustion requirement may be appropriate: with the Selective Service but fails to do so “shall be ineligible for any form of assistance or benefit provided under title IV of the Higher Education Act of 1965.” 50 U.S.C. app. § 462(f) Such circumstances occur when (1) (1). There is an exception to this rule, however, where the requiring exhaustion would occasion registration requirement has become inapplicable—due, for undue prejudice to subsequent example, to the registrant's age—and the person “shows by a assertion of a court action; (2) the preponderance of the evidence that the failure of the person administrative remedy is inadequate to register was not a knowing and willful failure to register.” because the agency cannot give Id. § 462(g). effective relief, e.g., (a) it lacks institutional competence to resolve the The MSSA directs the Department of Education (“DOE”) particular type of issue presented, such to “issue regulations to implement the requirements of” as the constitutionality of a statute; (b) § 462(f) and to afford any person denied benefits “an the challenge is to the adequacy of opportunity for a hearing to establish his compliance.” the agency procedure itself; or (c) the Id. § 462(f)(4). Pursuant to this authority, the DOE has agency lacks authority to grant the type promulgated 34 C.F.R. § 668.37, which sets forth the of relief requested; or (3) the agency find no error in the district *528 court's determination that is biased or has predetermined the Maxwell failed to raise a genuine issue of material fact with issue (also known as “futility”). Other respect to his ADA claim. Among other things, Maxwell circumstances potentially giving rise has offered no reason to believe that NYU's actions with to a waiver of exhaustion occur when respect to his financial aid were taken “on the basis of” his (4) the claim is collateral to a demand alleged disabilities, 42 U.S.C. § 12182(a), rather than on the for benefits, or (5) plaintiffs would basis of his Selective Service registration status. Moreover, suffer irreparable harm if required to disbursement of financial aid to a student who has been exhaust their administrative remedies. determined to be ineligible under federal law is not the kind of “reasonable modification[ ]” in policies that is required under the ADA to accommodate persons with disabilities. 42 U.S.C. Id. at 94 n. 4 (internal quotation marks, brackets, and § 12182(b)(2)(A)(ii). citations omitted); see also United States ex rel. Saint Regis Mohawk Tribe v. President R.C.-St. Regis Mgmt. Co., 451 F.3d 44, 50 (2d Cir.2006) (“Where administrative remedies 2. Denial of Pro Bono Counsel are not prescribed by statute, a plaintiff's failure to exhaust We review the denial of an application for pro bono administrative remedies can be excused if (1) the claim is counsel for abuse of discretion. See Terminate Control Corp. collateral to a demand for benefits, (2) exhaustion would be v. Horowitz, 28 F.3d 1335, 1341 (2d Cir.1994) (noting futile, or (3) requiring exhaustion would result in irreparable that district courts have “broad discretion” regarding the harm.” (internal quotation marks omitted)). appointment of counsel for indigent litigants). Here, the district court did not abuse its discretion in denying appointed Upon our independent review of the record, we conclude counsel because Maxwell had demonstrated an ability to file that the district court correctly analyzed the circumstances and respond to motions and otherwise to prosecute his action. surrounding Maxwell's MSSA claim and determined that See, e.g., Hodge v. Police Officers, 802 F.2d 58, 61 (2d each of the above criteria weighed in favor of requiring Cir.1986) (recognizing “plaintiff's apparent ability to present exhaustion of administrative remedies through the DOE the case” as factor relevant to need for pro bono counsel). under 34 C.F.R. § 668.37 as a necessary prerequisite to bringing his claim in federal court. The fact that application 3. Denial of Discovery Sanctions of the administrative exhaustion requirement to this case This Court reviews discovery rulings for abuse of discretion. will preclude judicial review of the merits of Maxwell's See Independent Order of Foresters v. Donald, Lufkin & claim does not support a contrary conclusion. See, e.g., Jenrette, Inc., 157 F.3d 933, 937 (2d Cir.1998). Based on McGee v. United States, 402 U.S. 479, 491, 91 S.Ct. 1565, our independent review of the record, we find no abuse of 29 L.Ed.2d 47 (1971) (holding that the failure to exhaust discretion in the district court's ruling that NYU satisfied administrative remedies barred defense to criminal charges its discovery obligation to make reasonable efforts to locate that defendant was entitled to exemption from Selective and produce responsive documents, as ordered by the district Service registration). Accordingly, we conclude that the court. district court properly granted summary judgment in favor of defendants on Maxwell's MSSA claim. We have considered Maxwell's remaining arguments on appeal and conclude that they are without merit. Accordingly, b. ADA the judgment is AFFIRMED. The ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, All Citations facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a); 407 Fed.Appx. 524, 265 Ed. Law Rep. 951 see also McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir.2007) (holding private institution of higher learning is “place of public accommodation” subject