Ganley v. City of New York ( 2018 )

17-1704
Ganley v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 25th day of May, two thousand eighteen.
PRESENT:
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
__________________________________________
Kevin P. Ganley,
Plaintiff-Appellant,
v. 17-1704
City of New York, Carol Blitzstein, Kelly Sandler, White Plains Hospital, Westchester Medical
Center, St. Vincents Hospital,
Defendants-Appellees.
__________________________________________
FOR PLAINTIFF-APPELLANT: Kevin P. Ganley, pro se, White Plains, N.Y.
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FOR DEFENDANTS-APPELLEES:
CITY OF NEW YORK Susan Paulson, Of Counsel (Deborah A.
Brenner, Of Counsel, on the brief), for
Zachary W. Carter, Corporation Counsel of
the City of New York, New York, N.Y.
CAROL BLITZSTEIN David Bloom, Kaufman Borgeest & Ryan
LLP, Valhalla, N.Y.
KELLY SANDLER Kelly Sandler, pro se, White Plains, N.Y.
WHITE PLAINS HOSPITAL Michael N. Romano, Pilkington & Leggett,
P.C., White Plains, N.Y.
WESTCHESTER MEDICAL CENTER William H. Bave, Jr., Wilson, Bave,
Conboy, Cozza & Couzens, P.C., White
Plains, N.Y.
ST. VINCENTS HOSPITAL Charles A. Collins, Jr., Collins, Fitzpatrick
& Schoene, LLP, White Plains, N.Y.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Karas, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Kevin P. Ganley, proceeding pro se, appeals from the district court’s judgment
dismissing his 42 U.S.C. § 1983 complaint. In 2015, Ganley brought a § 1983 suit against his ex-
wife, his former marital therapist, New York City, and three hospitals. He alleged that the
defendants’ actions caused him to be involuntarily committed for psychiatric treatment and
forcibly medicated for several years beginning in 1994. The district court denied Ganley’s motion
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for the appointment of counsel. It then granted the defendants’ motions to dismiss Ganley’s
original complaint, reasoning that the § 1983 claims were barred by the statute of limitations and
Ganley was not entitled to statutory or equitable tolling. It permitted Ganley to amend his
complaint. However, it subsequently granted the defendants’ motions to dismiss the amended
complaint with prejudice, reasoning that Ganley had not cured the deficiencies related to the
timeliness of his complaint or shown that he was entitled to equitable tolling. Ganley appeals.
We assume the parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.
We review for abuse of discretion the district court’s denial of a motion to appoint counsel,
denial of leave to amend, and determination about whether equitable tolling is warranted.
Carpenter v. Republic of Chile, 610 F.3d 776, 780 (2d Cir. 2010) (counsel); McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (amendment); Torres v. Barnhart, 417 F.3d
276, 279 (2d Cir. 2005) (equitable tolling). Upon such review, we conclude that the district court
did not abuse its discretion when it denied Ganley’s motion for the appointment of counsel,
concluded that he was not entitled to equitable tolling, and declined to grant leave for him to amend
his complaint a second time.
I. Appointment of Counsel
To determine whether to appoint counsel in a civil case, a district court should first consider
whether the indigent litigant’s position is likely to be of substance. Hodge v. Police Officers, 802
F.2d 58, 60-61 (2d Cir. 1986). If the district court determines that “threshold requirement” has
been met, it should then consider factors including the litigant’s ability to investigate his claims,
the litigant’s ability to present the case, the complexity of the legal issues, and “any special reason
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. . . why appointment of counsel would be more likely to lead to a just determination.” Id. at 61-
62. Here, the district court assumed the threshold requirement had been met for purposes of the
petition. The district court then properly considered the Hodge factors and reasonably concluded
that Ganley’s claims were not especially complex, that he had not indicated that he had actually
sought to retain counsel, and that he had not demonstrated that appointment of counsel was
necessary to prosecute his claim in a meaningful manner or to reach a just result. The district court
did not abuse its discretion in reaching this determination.
II. Equitable Tolling
Equitable tolling is applied in “rare and exceptional circumstances.” Walker v.
Jastremski, 430 F.3d 560, 564 (2d Cir. 2005). To qualify for equitable tolling, a litigant must
show that he diligently pursued his rights, but extraordinary circumstances prevented timely filing.
Id. Mental illness can justify equitable tolling in some circumstances, but the litigant seeking
equitable tolling bears the burden of demonstrating that it is appropriate in his specific case.
Bolarinwa v. Williams, 593 F.3d 226, 232 (2d Cir. 2010). To do so, he must offer a “particularized
description of how [his] condition adversely affected [his] capacity to function generally or in
relationship to the pursuit of [his] rights.” Id. (quoting Boos v. Runyon, 201 F.3d 178, 185 (2d
Cir. 2000)). A “conclusory and vague claim” that the litigant suffers from a mental illness will
not suffice. Boos, 201 F.3d at 185. Here, the district court properly concluded that Ganley’s
allegations about his condition were conclusory because he did not provide details about the onset
of his condition or how it prevented him from pursuing his claims. Although he now argues that
he suppressed the memory of the defendants’ conduct, he did not raise that argument until his
appellate reply brief, see Harrison v. Republic of Sudan, 838 F.3d 86, 96 (2d Cir. 2016); Conn.
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Bar Ass’n v. United States, 620 F.3d 81, 91 n.13 (2d Cir. 2010), and in any event his allegations
in his original and amended complaints suggested that he could function generally and pursue his
rights. According to Ganley’s pleadings, he reported his alleged mistreatment to his doctor, his
insurance company, and his employer; obtained an order of protection and a divorce; and became
a successful member of the community.
III. Leave to Amend
A district court should grant a pro se litigant leave to amend “at least once when a liberal
reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). The district court does not abuse its discretion when
it denies leave to amend because amendment is “unlikely to be productive.” Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Here, the district court granted Ganley
leave to amend when it dismissed his original complaint, and it provided a detailed explanation of
the deficiencies he should address. The district court was not required to give Ganley another
opportunity to address the same deficiencies.
We have considered Ganley’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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