Andrews v. Semple et al

Filing 21

ORDER denying without prejudice 7 Motion to Appoint Counsel; denying without prejudice 8 Motion to Determine Legal Competence. Signed by Judge Stefan R. Underhill on 4/17/2018. (Schneider, K)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DION ANDREWS,
Plaintiff,
v.
SCOTT SEMPLE, et al.,
Defendants.

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No. 3:17-cv-1233 (SRU)

RULING ON MOTIONS FOR APPOINTMENT OF COUNSEL
AND TO DETERMINE LEGAL COMPETENCE
Dion Andrews (“Andrews”), currently confined at Northern Correctional Institution in
Somers, Connecticut, filed this complaint pro se under 42 U.S.C. § 1983, asserting claims for
unconstitutional conditions of confinement and failure to protect him from assault by another
inmate. He now has filed motions seeking appointment of pro bono counsel (doc. # 7) and
requesting assessment of his legal competence to proceed pro se (doc. # 8). For the reasons that
follow, Andrews’s motions are both denied.
There is no constitutional right to court-appointed counsel in a civil case. See, e.g., Rivas
v. Suffolk Cty., 2008 WL 45406, at *1 (2d Cir. Jan. 3, 2008) (noting that civil litigants have no
constitutional right to counsel). Therefore, the Second Circuit repeatedly has cautioned the
district courts against the routine appointment of counsel. See, e.g., Ferrelli v. River Manor
Health Care Center, 323 F.3d 196, 204 (2d Cir. 2003); Hendricks v. Coughlin, 114 F.3d 390,
393 (2d Cir. 1997). The Second Circuit also has made clear that before an appointment is even
considered, the indigent person must demonstrate that he is unable to obtain counsel. Saviano v.
Local 32B-32J, 75 F. App’x 58, 59 (2d Cir. 2003) (quoting Cooper v. A. Sargenti Co., 877 F.2d

170, 173 (2d Cir. 1989)).
Andrews identifies three law firms that he contacted and attaches to his motion letters
from those firms declining representation. He also states that Inmates’ Legal Aid Program
cannot represent him. However, although their contract with the Department of Correction does
not include representation of inmates in court, Inmates’ Legal Aid Program is able to provide
legal assistance such as advice relating to discovery and assistance in responding to dispositive
motions filed by the defendants. Andrews does not indicate that he requested the type of
assistance Inmates’ Legal Aid Program can provide. Thus, unless Andrews provides further
details, I cannot determine whether Andrews is unable to obtain legal assistance on his own.
In cautioning the district courts against the “routine appointment of counsel”, the Second
Circuit has underlined the importance of requiring an indigent to “pass the test of likely merit”.
Cooper, 877 F.2d at 173-74. The Court has explained that “[e]ven where the claim is not
frivolous, counsel is often unwarranted where the indigent’s chances of success are extremely
slim.” Id. at 171 (quoting Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986)). Although
Andrews argues that his claims are meritorious, I cannot properly evaluate the claims without at
least a response from the defendants. That response is long overdue, but the current record is
unfortunately insufficient for me to determine whether the plaintiff’s claims possess likely merit
and appointment of counsel is, accordingly, premature.
Andrews also asks the Court to order an evaluation of his legal competence and ability to
litigate this case. Because Andrews may have legal assistance available to him, the Court
declines this request.
Andrews’s motion for appointment of counsel (doc. # 7) and motion to determine
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competence (doc. # 8) are both DENIED without prejudice.
SO ORDERED at Bridgeport, Connecticut, this 17th day of April 2018.
/s/ STEFAN UNDERHILL
Stefan R. Underhill
United States District Judge

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