14 F.3d 787 (2nd Cir. 1994), 44, Burgos v. Hopkins

Docket Nº:44, Docket 93-2006.
Citation:14 F.3d 787
Party Name:Ricardo BURGOS, Plaintiff-Appellant, v. Marian HOPKINS, Warden; Daniel Meehan, Deputy Warden; James Grillo, Captain; Warlick, Correction Officer (Shield No. 7328); NFN Hurdle, Correction Officer (Shield No. ___), Defendants-Appellees.
Case Date:January 26, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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14 F.3d 787 (2nd Cir. 1994)

Ricardo BURGOS, Plaintiff-Appellant,


Marian HOPKINS, Warden; Daniel Meehan, Deputy Warden;

James Grillo, Captain; Warlick, Correction

Officer (Shield No. 7328); NFN Hurdle,

Correction Officer (Shield No.

___), Defendants-Appellees.

No. 44, Docket 93-2006.

United States Court of Appeals, Second Circuit

January 26, 1994

Submitted Oct. 8, 1993.

Ricardo Burgos, pro se.

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A. Orli Spanier, New York City (O. Peter Sherwood, Corp. Counsel of the City of New York, New York City, of counsel), for defendants-appellees.

Before: PIERCE, MINER and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Plaintiff-appellant Ricardo Burgos appeals pro se from a judgment of the United States District Court for the Eastern District of New York (Nickerson, J.), dismissing on res judicata grounds his civil rights action brought pursuant to 42 U.S.C. Sec. 1983 (1988). The district court determined that Burgos's Sec. 1983 claims had already been fully litigated in a state court habeas corpus proceeding, which had been decided against him. The district court had previously denied Burgos's motion for appointment of pro bono counsel.

Burgos now essentially argues that the district court erred in denying him counsel, preventing him from showing that his Sec. 1983 claims are not barred by res judicata. We agree, because our review of relevant state statutes and case law shows that the relief now sought by Burgos was not available in the prior state court proceeding. For that reason, we hold that Burgos's instant claim is not barred by res judicata, and remand for further consideration, including a determination of whether collateral estoppel applies.


On August 7, 1991, Burgos brought the present action pro se under 42 U.S.C. Sec. 1983 against various employees of the House of Detention for Men on Rikers Island ("the appellees"). Burgos's complaint alleged that he sustained injury in a May 1989 attack at Rikers Island by a fellow inmate named Jose Medina due to the appellees' failure to assign him to protective housing pursuant to his security classification. He also alleged that two correction officer appellees improperly permitted Medina to have access to his cell block.

Burgos had previously brought both a state habeas corpus proceeding and a prior federal Sec. 1983 action based on the May 1989 incident at Riker's Island. The prior state habeas corpus proceeding was commenced in July 1989 in the New York State Supreme Court, Bronx County. The petition was brought against the former Commissioner of the New York City Department of Correction and the Warden of the Bronx House of Detention, the institution in which Burgos was incarcerated. Burgos alleged through counsel that he was subjected to cruel and unusual punishment primarily as a result of a May 1989 attack by another inmate instigated by correction officers. The inmate was later identified as Jose Medina. After a hearing in which Burgos called three inmates and five correction officers as witnesses, the state judge dismissed all the allegations based on the May 1989 attack. The rest of the petition was subsequently dismissed on February 2, 1990.

The prior federal action was brought pursuant to 42 U.S.C. Sec. 1983 and commenced in July 1989--at the same time as the state action--in the United States District Court for the Southern District of New York (Mukasey, J.). Burgos cited the May 1989 attack as a violation of his civil rights, and requested as part of his relief a transfer to the federal prison system. The action was brought against the same individuals as in the state habeas proceeding, and also against correction officials in both the state and federal prison systems. On January 3, 1990, the district court stayed the action until the state habeas proceeding was resolved. It does not appear that Burgos requested reactivation of the Southern District action after the state action was decided against him. Instead, he brought the instant, virtually identical, Sec. 1983 action in the Eastern District.

As noted, the instant action raised the same claims as those raised in both the prior state proceeding, which was resolved against him, and the prior federal action, which was never resolved. Burgos applied for appointment of pro bono counsel to represent him in the instant Sec. 1983 suit, but the motion was denied by the district court on July 14, 1992. The court stated that it would consider the motion as the case progressed, but did not address the issue again during the course of the proceedings, even after a renewed motion by Burgos.

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The appellees moved for summary judgment in August 1992, arguing that Burgos's Sec. 1983 claim was barred by the doctrine of res judicata. The argument was based on Burgos's prior actions, the appellees contending that Burgos had already raised the same claims and had them resolved against him in state court. The district court agreed, dismissing the action on summary judgment on December 8, 1992. The court, reviewing the history of Burgos's prior state court habeas proceeding, found that Burgos had already been afforded a full opportunity to litigate his claims in the prior cases. The district court also found that Burgos had incorrectly declared when filing the instant suit that he had not begun any other lawsuits dealing with the same facts involved.

Burgos now appeals pro se, arguing that the district court erred by refusing to appoint pro bono counsel. Burgos contends that without counsel he was unable to demonstrate that his claims were not barred by res judicata. Resolution of this argument depends on whether Burgos's position that res judicata does not apply has possible merit. For the reasons stated below, we find that Burgos's claims are not barred by res judicata, and remand the case to the district court for further consideration.


We review the district court's grant of summary judgment de novo. Trans-Orient Marine Corp. v. Star Trading and Marine, Inc., 925 F.2d 566, 572 (2d Cir.1991). We must "resolve all ambiguities and draw all reasonable inferences in favor" of the non-moving party, and require "the moving party to demonstrate the absence of any material factual issue genuinely in dispute." Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975).

The central issue in this appeal is whether Burgos's argument that his claim is not precluded by res judicata had sufficient merit to deserve appointment of counsel. There is no requirement that an indigent litigant be appointed pro bono counsel in civil matters, unlike most criminal cases. See 28 U.S.C. Sec. 1915(d) (1988) (providing that the court "may request an attorney to represent any such person unable to employ counsel") (emphasis added). Rather, the district court has the discretion to appoint counsel, according to factors set forth by this Court in Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir.1986) (listing various factors including the likely merit of the indigent litigant's position, the indigent's ability to investigate facts, the importance of cross-examination, the indigent's ability to present his case, and the complexity of the case). In Hodge, we held that the threshold requirement in considering a request for appointment of counsel was the likelihood of success on the merits of the claim. See 802 F.2d at 60-61; see, e.g., Cooper v. A. Sargenti Co., 877 F.2d 170, 172-73 (2d Cir.1989) (emphasizing necessity for claim to have merit for appointment of counsel).

The district court relied on this threshold requirement in denying Burgos's motion for appointment of counsel, principally on the ground that his claims were barred by res judicata because of the earlier state habeas proceeding. In order to decide whether Burgos should have been afforded counsel, therefore, we must determine whether res judicata does bar Burgos's claim in the instant Sec. 1983 action.

Traditionally, the doctrine of res judicata, or claim preclusion, provides that "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980) (applied in the context of Sec. 1983 actions). Res judicata must be distinguished from the very similar but distinct doctrine of collateral estoppel, which is also known as issue, rather than claim, preclusion. As defined in Allen, "[u]nder collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Id. Different rules and restrictions apply to each doctrine, and although some courts fail to distinguish between the two, see id. at 94 n. 5, 101 S.Ct. at 414 n. 5, it is important in this case to be

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cognizant of their distinctiveness. The district court did not make clear in its opinion whether it was dismissing the case on res judicata or collateral estoppel grounds. Although the court used language suggestive of collateral estoppel, both parties have characterized the decision as one involving res judicata. Because...

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