Coles v. Suro

UNITED STATES DISTRICT COURT                                              
WESTERN DISTRICT OF NEW YORK                                              
_______________________________________                                   

DAIQUANA COLES,                                                           
                                   DECISION & ORDER                  
                Plaintiff,                                           
                                   22-CV-6407EAW                     
     v.                                                              

CITY OF ROCHESTER,1 et al.,                                               

               Defendants.                                           
_______________________________________                                   



     Plaintiff DaiQuana Coles filed this action pro se against defendants City of 
Rochester and the Rochester Public Library pursuant to the Americans with Disability Act of 
1990, 42 U.S.C. §§ 12112, et seq., the New York State Human Rights Law, N.Y. Exec. Law 
§§ 290, et seq., and the City of Rochester Human Rights Law.  (Docket ## 1, 25).  Currently 
pending before this Court is Coles’s motion for appointment of counsel and defendants’ motions 
to compel and to extend the scheduling order.  (Docket ## 30, 34, 37).  For the reasons discussed 
below, Coles’s motion for appointment of counsel is denied, and defendants’ motions to compel 
and to extend the scheduling order are granted.                           

I.   Motion to Appoint Counsel                                            
     It is well-settled that there is no constitutional right to appointed counsel in civil 
cases.  Although the Court may appoint counsel to assist indigent litigants pursuant to 28 U.S.C. 
§ 1915(e), see, e.g., Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 

1  By Stipulation and Order dated January 29, 2024, the Amended Complaint became the operative 
complaint in this matter.  (Docket # 27).  The Clerk of the Court is directed to amend the caption of this case to 
reflect the parties named in the Amended Complaint.                       
23 (2d Cir. 1988), such assignment of counsel is clearly within the judge’s discretion.  In re 
Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984).  The factors to be considered in deciding 
whether or not to assign counsel include the following:                   
     1.   Whether the indigent’s claims seem likely to be of         
          substance;                                                 

     2.   Whether the indigent is able to investigate the crucial facts 
          concerning [her] claim;                                    

     3.   Whether conflicting evidence implicating the need for      
          cross-examination will be the major proof presented to the 
          factfinder;                                                

     4.   Whether the legal issues involved are complex; and         

     5.   Whether there are any special reasons why appointment of   
          counsel would be more likely to lead to a just             
          determination.                                             

Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Hodge v. Police Officers, 802 
F.2d 58, 61-62 (2d Cir. 1986).                                            
     The Court must consider the issue of appointment carefully because “every 
assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer 
available for a deserving cause.”  Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 
1989).  Therefore, the Court must first look to the “likelihood of merit” of the underlying 
dispute, Hendricks v. Coughlin, 114 F.3d at 392; Cooper v. A. Sargenti Co., Inc., 877 F.2d at 
174, and “even though a claim may not be characterized as frivolous, counsel should not be 
appointed in a case where the merits of the . . . claim are thin and [plaintiff’s] chances of 
prevailing are therefore poor.”  Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 
(2d Cir. 2001) (denying counsel on appeal where petitioner’s appeal was not frivolous but 
nevertheless appeared to have little merit).                              
     This Court previously appointed pro bono counsel to Coles for the limited 
purpose of assisting her to amend her complaint and participate in mediation.  (Docket ## 23, 24, 
29).  Coles now maintains that full-scope appointment of counsel is warranted due to her limited 
financial resources, as well as her disabilities.  (Docket # 30).  The Court has reviewed the facts 

presented herein in light of the factors required by law and finds, pursuant to the standards stated 
by Hendricks, 114 F.3d at 392, and Hodge v. Police Officers, 802 F.2d at 61-62, that 
appointment of counsel is not warranted at this time.  At this time it is unclear whether Coles’s 
claims likely have merit, the legal issues are not especially complex, and Coles has not 
demonstrated that she is unable to investigate the relevant facts of her of claims. 
     Although Coles alleges that she suffers from disabilities, she has not demonstrated 
that those impairments limit her ability to litigate this case.  To the contrary, review of the docket 
demonstrates that she drafted the original complaint, has corresponded with the Court to update 
her address2 and request extensions of deadlines, and has submitted an opposition to defendants’ 
pending motions.  (Docket ## 1, 19, 32, 36).  Appointment of counsel is thus not warranted on 

this basis.  See, e.g., Perez v. Cnty. of Monroe, 2012 WL 4052470, *2 (W.D.N.Y. 2012) (denying 
appointment of counsel where pro se plaintiff was “capable of prosecuting his case” and 
“equipped to understand the litigation process” despite “mental health disabilities”); Lewis v. 
Turco, 2010 WL 2287509, *1 (W.D.N.Y. 2010) (appointment of counsel denied where pro se 
plaintiff had not demonstrated that mental health issues would hinder his ability to litigate his 
claims); Byng v. Campbell, 2008 WL 4662349, *6 (N.D.N.Y. 2008) (denying appointment of 
counsel where pro se plaintiff was “able effectively to litigate” his claims notwithstanding 


2  In one of her submissions to the Court, Coles requested assistance with filing a motion to compel.  
(Docket # 32).  By separate letter dated March 28, 2024, Coles has been provided with a copy of the Pro Se 
Litigation Guidelines and information regarding the Pro Se Assistance Program. 
various “medical and mental health issues”).  Finally, Coles’s case does not present any special 
reasons justifying assignment of counsel.                                 
     On this record, Coles’s request for appointment of counsel (Docket # 30) is 
DENIED without prejudice.  It is plaintiff’s responsibility to hire an attorney or continue with 

this lawsuit pro se.  28 U.S.C. § 1654.                                   

II.  Motion to Compel                                                     
     On February 28, 2024, defendants filed the pending motion to compel seeking a 
an order requiring plaintiff to provide HIPPA-compliant authorizations permitting defendants to 
obtain copies of plaintiff’s medical records.  (Docket # 34).  Specifically, defendants request that 
plaintiff provide the following authorizations:                           
     1)   “a properly executed HIPAA-compliant authorization for release (to 
          Defendants’ attorney) of any and all records of medical or mental health 
          care or treatment received by [Coles] by any Medical Care Provider from 
          February 10, 2019 to present”;                             

     2)   “a properly executed HIPAA-compliant authorization for release (to 
          Defendants’ attorney) of any and all records of medical or mental health 
          care or treatment of [Coles] by Jack O’Connor, NP from February 10, 
          2021 to present”; and                                      

     3)   “a properly executed HIPAA-compliant authorization for release (to 
          Defendants’ attorney) of any and all records of medical or mental health 
          care or treatment of [Coles] by Tonya Girard from February 10, 2021 to 
          present.”                                                  

(Docket # 34-1 at ¶¶ 7-9).  Defendants note that Coles identified O’Connor and Girard as treating 
providers in her initial disclosures.  (Id. at ¶ 6).  According to defendants, plaintiff’s medical 
records are relevant to her disability discrimination claims, as well as to her claimed damages, 
specifically, that she suffered severe emotional damages as a result of defendants’ actions.  
(Docket ## 34 at ¶¶ 4-5; 34-2 at 3-4).  Defendants contend that the temporal scope of their 
request is appropriately limited to three years prior to Coles’s date of hire through the present.  
(Docket # 34-2 at 4-5).                                                   
     Coles opposes the motion on the grounds that her medical records are not relevant 
to her claims because defendants “have already regarded [p]laintiff as disabled.”  (Docket # 36 at 

41, ¶ 3).  In addition, she maintains that the request is an “unnecessary intrusion” into her privacy 
and is unduly burdensome.  (Id. at 41, ¶¶ 3-5).  Coles has already produced some redacted 
medical records in connection with her initial disclosures and argues that any additional relevant 
information may be obtained through witness testimony or other “documentary evidence.”  
(Docket ## 36 at 7, ¶ 5; 42 at ¶ 6).                                      
     “Federal common law recognizes ‘a privilege protecting confidential 
communications between a psychotherapist and her patient.’”  Powers v. Colonial Toyota, Inc., 
2019 WL 13291994, *5 (D. Conn. 2019) (quoting Jaffee v. Redmond, 518 U.S. 1, 9 (1996)).  
Moreover, although there is no general physician-patient privilege under federal law, Coles does 
maintain a privacy interest in her medical records.  See Fresh Air for Eastside, Inc. v. Waste 

Mgmt. of N.Y., LLC, 2023 WL 6121169, *7 (W.D.N.Y. 2023) (“[a] bar against discoverability of 
ordinary physician-patient records does not exist”); Manessis v. N.Y.C. Dep’t of Transp., 2002 
WL 31115032, *2 (S.D.N.Y. 2002) (citing Olszewski v. Bloomberg L.P., 2000 WL 1843236, *2 
(S.D.N.Y. 2000)) (recognizing “a privacy interest in keeping one’s medical and mental health 
records confidential”); Gill v. DeFrank, 2000 WL 270854, *12 (S.D.N.Y.) (recognizing that 
plaintiff has a right to privacy in his medical records), modified on other grounds, 2000 WL 
897152 (S.D.N.Y. 2000).  Nevertheless, such privileges and interests are waived when “a litigant 
puts [her] physical or mental condition into issue in the litigation.”  Manessis v. N.Y.C. Dep’t of 
Transp., 2002 WL 31115032 at *2; see Powers v. Colonial Toyota, Inc., 2019 WL 13291994 at 
*5 (“[w]aiver occurs when a plaintiff puts his or her mental condition at issue in the case”) 
(quotations omitted).                                                     
     In this case, Coles claims that defendants discriminated against her based upon 
her medical impairments, including autism and attention deficit hyperactivity disorder.  (Docket 

# 25 at ¶ 16).  In addition, plaintiff alleges that she was excused from work on May 12, 2022, 
pursuant to a letter from her physician advising that plaintiff was attending a mental health 
recovery program.  (Id. at ¶ 91).  In addition, the damages that Coles seeks in this litigation 
include compensation for “severe mental anguish and emotional distress, including but not 
limited to, depression, humiliation, embarrassment, stress and anxiety, loss of self-esteem and 
self-confidence, and emotional pain and suffering.”  (Id. at ¶ 98).       
     I find that Coles has placed her medical health and medical history at issue in this 
case, entitling defendants to discovery of her medical treatment records both before and after her 
employment.  See Cordero v. United States, 2021 WL 568079, *2 (S.D.N.Y. 2021) (rejecting 
argument that medical releases are objectionable solely because they seek medical records 

predating the automobile accident and finding that defendant is entitled to three years of medical 
records); Morales v. Pepsi Co. Inc., 2018 WL 3853390, *4 (W.D.N.Y. 2018) (“[t]o the extent 
[plaintiff] seeks damages for non-garden variety emotional distress, I agree with defendant that 
any medical records reflecting mental health treatment provided to [plaintiff] to address such 
distress would be relevant and discoverable”); Cherkaoui v. City of Quincy, 2015 WL 4504937, 
*2 (D. Mass. 2015) (“plaintiff advances four causes of action explicitly alleging discrimination 
on the basis of her alleged mental health related disability[, and] [s]he . . . alleges that she 
suffered ‘severe emotional distress’ as a result of the discrimination[;] . . . [o]n these facts, there 
is no question that the plaintiff has based a significant part of her case on her mental health and 
she therefore has unequivocally and unambiguously placed her mental health at issue”); 
Melendez v. Falls, 2010 WL 811337, *2 (W.D.N.Y. 2010) (defendants entitled to inspect records 
– from a reasonable period before and after the alleged injuries – “that reveal medical conditions 
or injuries . . . that could have contributed to or aggravated the injuries [plaintiff] claims resulted 

from th[e] incident”); Julicher v. Town of Tonawanda, 2008 WL 4415226, *4 (W.D.N.Y. 2008) 
(ordering authorizations for release of medical and mental health records from two years prior to 
relevant event).                                                          
     Because Coles alleges that defendants discriminated against her on the basis of 
her disability, she must provide defendants with an authorization to obtain her relevant medical 
treatment records; in this case, those records are medical records from any provider who treated 
her for any of the disabilities alleged in her complaint at any time during the period of three years 
prior to her hiring and continuing to the present.  In addition, because Coles claims that she 
suffered severe emotional distress as a result of defendants’ actions, defendants are permitted to 
obtain her mental health treatment records for a period of three years prior to her hiring and 

continuing to the present.  The scope of production includes records predating Coles’s hiring 
because “a defendant is entitled to learn whether the emotional distress suffered by a plaintiff 
was caused by something other than [d]efendant’s conduct.”  Powers, 2019 WL 13291994 at *6 
(internal quotations omitted); Green v. St. Vincent’s Med. Ctr., 252 F.R.D. 125, 129 (D. Conn. 
2008) (“[d]efense counsel has a right to inquire into plaintiffs’ pasts for the purpose of showing 
that their emotional distress was caused at least in part by events and circumstances that were not 
job related”).                                                            
     On this record, defendants’ motion to compel (Docket # 34) is GRANTED.  On 
or before April 11, 2024, Coles must provide defendants with a list of every medical treatment 
provider who has provided her treatment for any of the disabilities alleged in the complaint or 
who has provided her with mental health treatment between 2019 and the present.  On or before, 
April 18, 2024, defendants must provide Coles with HIPAA-compliant authorizations for the 
release of Coles’s medical records for each of the providers identified by Coles.  On or before, 

April 30, 2024, Coles must execute and return the authorizations to the defendants. 

III.  Motion to Extend the Scheduling Order                               
     Defendants also request an extension of the Court’s scheduling order in order to 
obtain Coles’s medical records prior to conducting her deposition.  (Docket ## 34-2 at 5-7; 37).  
Coles opposes the request, contending that defendants have not diligently pursued the requested 
discovery.                                                                
     The current scheduling order was issued on July 11, 2023, following the Rule 16 
conference.  (Docket # 10).  Since that time, the parties have engaged in written discovery, and 
pro bono counsel was appointed for the limited purpose of amending the complaint, which was 

filed on January 22, 2024, and assisting Coles with mediation, which was completed on January 
31, 2024.  (Docket ## 24, 25, 28).  Within a month following the mediation and more than a 
month prior to the close of fact discovery, defendants filed the pending motion.  (Docket ## 10, 
34).  I find that good cause exists to extend the scheduling order in order to permit defendants to 
obtain the relevant medical records prior to conducting Coles’s deposition.  Accordingly, 
defendants’ motion for an extension of the scheduling order (Docket ## 34, 37) is GRANTED.  
The Court will issue an amended schedule by separate order.               
                      CONCLUSION                                     
     For the reasons discussed above, Coles’s motion for appointment of counsel 
(Docket # 30) is DENIED without prejudice, and defendants’ motions to compel and for an 
extension of the scheduling order (Docket ## 34, 37) are GRANTED.  The Clerk of the Court is 

directed to amend the caption to reflect the parties identified in the Amended Complaint.  
(Docket # 25).  On or before April 11, 2024, Coles must provide defendants with a list of every 
medical treatment provider who has provided her treatment for any of the disabilities alleged in 
the complaint or who has provided her with mental health treatment between 2019 and the 
present.  On or before, April 18, 2024, defendants must provide Coles with HIPAA-compliant 
authorizations for the release of Coles’s medical records for each of the providers identified by 
Coles.  On or before, April 30, 2024, Coles must execute and return the authorizations to the 
defendants.                                                               
IT IS SO ORDERED.                                                         



                                          s/Marian W. Payson         
                                       MARIAN W. PAYSON              
                                   United States Magistrate Judge    
Dated: Rochester, New York                                                
March 28, 2024