    12-4558-pr
    United States v. Medina

                                    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 “SUMMARY 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
    13th day of February, two thousand fourteen.

    PRESENT:
                PIERRE N. LEVAL,
                GUIDO CALABRESI ,
                GERARD E. LYNCH,
                      Circuit Judges.
    _____________________________________

    Anthony Medina et al.,


                              Appellant,

                      v.                                                12-4558-pr(L)
                                                                        13-0131-pr(CON)
    David F. Napoli et al.,

                              Appellees.

    _____________________________________

    FOR APPELLANT:                                       Robin C. Smith, Law Office of Robin C.
                                                         Smith, Esq., PC, San Rafael, CA.

    FOR APPELLEES:                                       Martin A. Hotvet, Assistant Solicitor
                                                         General (Eric T. Schneiderman, Attorney
                                                         General, Barbara D. Underwood, Solicitor
                                                         General, Denise A. Hartman, Assistant
                                                         Solicitor General, on the brief) Albany, NY.

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               Appeal from a judgment of the United States District Court for the Western

District of New York (John T. Curtin, Judge; H. Kenneth Schroeder, Jr., Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment is VACATED, and the case is REMANDED for further

proceedings.

       Anthony Medina appeals from the dismissal of his lawsuit against certain prison officials

at Southport Correctional Facility. As appellees concede, the district court granted summary

judgment in their favor before Medina, then pro se, had an opportunity to respond to their

motion. Medina asserts, and appellees do not contest, that the judgment should be vacated and

the case remanded, because the district court should have given him such an opportunity before

deciding to dismiss the case. Medina, in turn, accedes to appellees’ contention that the remand

should be limited, agreeing in his reply brief that “upon remand, he will only pursue his claims

that he was deprived of food maliciously, or in retaliation for having filed grievances and this

action.” We agree that the judgment should be vacated, and accordingly remand the case as

requested by the parties.

       Medina also contends that the magistrate judge erred in denying his motions to appoint

counsel. “Broad discretion lies with the district judge in deciding whether to appoint counsel . . .

.” Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986). “A court must exercise its discretion

in accordance with sound legal principles, and its decision is subject to review for abuse of that

discretion.” Id. The magistrate judge concluded that Medina had successfully presented cogent

legal arguments without the assistance of counsel, and that, consequently, he was sufficiently

able to prosecute his case pro se that the appointment of counsel would be unwarranted. We
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need not decide whether the court’s reasoning fell outside the range of permissible decisions

under the circumstances as they existed when its rulings were made. See Hendricks v. Coughlin,

114 F.3d 390, 392 (2d Cir. 1997) (district courts should weigh several factors, including, among

other things, “the indigent’s ability to present the case”). The case must be remanded in any

event, and since the prior rulings were without prejudice, Medina is free to renew his motion on

remand. The circumstances have apparently changed since the prior denials of counsel, and

counsel for both sides stated at oral argument that, in light of Medina’s continuing struggles with

psychiatric issues, the further deterioration of his vision to the point of blindness, and the

apparent present unavailability or ineffectiveness of certain accommodations previously made to

assist him in reviewing materials and presenting his case, the appointment of counsel is now

appropriate. We agree. We note with gratitude that the efforts of pro bono counsel have been of

great assistance to us in connection with the appeal.

       Finally, we deny Medina’s request, somewhat conclusorily made, that we direct that the

case be reassigned to a different district judge. That the district court erred in acting

precipitately on the motion for summary judgment does not, under the circumstances in which

Medina had made a number of submissions that perhaps were mistaken for responses on the

merits, suggest the reality or appearance of bias on the part of the district court. See United

States v. Robin, 553 F. 2d 8, 10 (2d Cir. 1977) (en banc) (explaining that reassignment warranted

only upon “proof of personal bias requiring recusation” or in the “unusual circumstances” where

it “minimizes even a suspicion of partiality”). In support of his argument for reassignment,

Medina further argues that the reassignment of the case from the magistrate judge to the district

judge did not conform to the requirements of 28 U.S.C. § 636(c)(4). Even if we agreed, it would

not follow that the case should be reassigned to a different district judge. As Medina has not
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shown that he sought a ruling on the § 636(c)(4) issue in the district court, we express no view

on the merits of that issue.

       Accordingly, for the reasons set forth above, the judgment of the district court is

VACATED, and the case is REMANDED for further proceedings.




                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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