606 F.3d 39 (2nd Cir. 2010), 08-6048-pr, Johnston v. Maha

Docket Nº:08-6048-pr.
Citation:606 F.3d 39
Opinion Judge:POOLER, Circuit Judge:
Party Name:David JOHNSTON, Plaintiff-Appellant, v. Genessee County Sheriff MAHA, Superintendent Ronald Greer, Senior Co Zipfel, Correction Officer Wolff, Correction Officer Kometz, Deputy Zehler, Senior Co Kuplo, Senior Co Cawkins, Correction Officer Lindsay, Genesee County, Genesee County Jail, Correction Officer Conway, Correction Officer Ridder, Correction
Attorney:David Johnston, pro se, Plaintiff-Appellant. Shawn P. Martin, Hurtz & Fine, P.C., Buffalo, NY, for Defendants-Appellees.
Judge Panel:Before: JACOBS, Chief Judge, POOLER, and PARKER, Circuit Judges.
Case Date:May 21, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 39

606 F.3d 39 (2nd Cir. 2010)

David JOHNSTON, Plaintiff-Appellant,

v.

Genessee County Sheriff MAHA, Superintendent Ronald Greer, Senior Co Zipfel, Correction Officer Wolff, Correction Officer Kometz, Deputy Zehler, Senior Co Kuplo, Senior Co Cawkins, Correction Officer Lindsay, Genesee County, Genesee County Jail, Correction Officer Conway, Correction Officer Ridder, Correction Officer Smith, Nurse Terese Bryan, Correction Officer Hoy, Transportation Officer John Doe, Genesee County Jail Doctor John Doe 2, United Methodist Hospital Doctor Jane Doe, United Memorial Hospital Nurse Jane Doe, Jane-John Doe One-Fifteen, United Memorial Hospital, Defendants-Cross-Claimants-Cross-Defendants-Appellees.

No. 08-6048-pr.

United States Court of Appeals, Second Circuit.

May 21, 2010

Submitted: Sept. 9, 2009.

Page 40

David Johnston, pro se, Plaintiff-Appellant.

Shawn P. Martin, Hurtz & Fine, P.C., Buffalo, NY, for Defendants-Appellees.

Before: JACOBS, Chief Judge, POOLER, and PARKER, Circuit Judges.

POOLER, Circuit Judge:

David Johnston (" Johnston" ) plaintiff-appellant, pro se, moves for the appointment of counsel in his appeal from the judgment of the United States District Court for the Western District of New York (Larimer, J. ), dismissing the action. We conclude that appointment of counsel is appropriate with respect to Johnston's claim that he was placed in solitary confinement, with excessive force, as a pretrial detainee. We appoint counsel initially to brief this panel as to whether Johnston was in fact a pre-trial detainee at the time of his detention. If we rule that there is no sufficient evidence to that effect, the appointment of counsel will terminate.

I. BACKGROUND

Johnston initiated this pro se action by filing a complaint under 42 U.S.C. § 1983 against Genesee County Sheriff Gary Maha, and more than two dozen named and unnamed officials and employees of the Genesee County Jail (the " Jail" ), Genesee Memorial Hospital, as well as the Jail and Genesee County. Johnston's complaint contained fourteen distinct claims. Johnston alleged 1) he had been placed in " punitive isolation" in March 2005; 2) defendants violated his Eighth Amendment rights when he was placed in solitary confinement with excessive force; 3) he was assaulted in July 2005 by two correctional officers; 4) he slipped and fell on a wet floor in December 2004; 5) defendants violated his rights under the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101 (2006) et seq., when defendants ignored the consequences of the slip...

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