McBane v. Reilly

Second Circuit

McBane v. Reilly

114 F. App'x 42

CourtCourt of Appeals for the Second Circuit

DecidedDecember 2, 2004

DocketNo. 04-1221

StatusPublished

Cited by1 cases

This text of 114 F. App'x 42 (McBane v. Reilly) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McBane v. Reilly, 114 F. App'x 42 (2d Cir. 2004).

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Opinion

[43]*43SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.

In early 2003, plaintiff-appellant Scott McBane, a prisoner at the Collins Correctional Facility in Collins, New York, was bitten by a mouse in his jail cell. He filed suit in July 2003 against Sheriff Edward Reilly of the Nassau County Correctional Facility, and alleged a variety of constitutional harms related to the mouse bite, for which he sought $5,000,000 in monetary damages pursuant to 42 U.S.C. § 1983. In August 2003, the district court sua sponte dismissed McBane’s complaint, without prejudice, for failure to state a claim. The court also denied McBane’s numerous requests for appointed counsel. In January 2004, after McBane filed an essentially identical complaint as an amendment, the district court dismissed McBane’s complaint, with prejudice, for failure to state a claim. McBane now appeals.

We agree for substantially the reasons given by the district court that the plaintiff has not stated a cognizable claim. Under the circumstances, we cannot say that the district court’s decision not to appoint counsel was an abuse of discretion.

We have considered all of McBane’s arguments and find them to be without merit. The judgment of the district court is therefore AFFIRMED.

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[43]*43SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.

In early 2003, plaintiff-appellant Scott McBane, a prisoner at the Collins Correctional Facility in Collins, New York, was bitten by a mouse in his jail cell. He filed suit in July 2003 against Sheriff Edward Reilly of the Nassau County Correctional Facility, and alleged a variety of constitutional harms related to the mouse bite, for which he sought $5,000,000 in monetary damages pursuant to 42 U.S.C. § 1983. In August 2003, the district court sua sponte dismissed McBane’s complaint, without prejudice, for failure to state a claim. The court also denied McBane’s numerous requests for appointed counsel. In January 2004, after McBane filed an essentially identical complaint as an amendment, the district court dismissed McBane’s complaint, with prejudice, for failure to state a claim. McBane now appeals.

We agree for substantially the reasons given by the district court that the plaintiff has not stated a cognizable claim. Under the circumstances, we cannot say that the district court’s decision not to appoint counsel was an abuse of discretion.

We have considered all of McBane’s arguments and find them to be without merit. The judgment of the district court is therefore AFFIRMED.

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114 F. App'x 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcbane-v-reilly-ca2-2004.

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