Pearsall v. Sposato et al

Filing 8

MEMORANDUM & ORDER denying 5 Motion to Appoint Counsel; granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED and the application for t he appointment of pro bono counsel to represent Plaintiff in this case is DENIED WITHOUT PREJUDICE AND WITH LEAVE TO RENEW when this case is trial ready, if so warranted at that time. The Clerk of the Court is directed to forward copies of the Summon ses, Complaint, and this Order to the United States Marshal Service for service upon Defendants without prepayment of fees and to mail a copy of this Memorandum and Order to the pro se Plaintiff at his last known address. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. So Ordered by Judge Joanna Seybert on 2/7/2017. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DIYA JAMAL PEARSALL,
Plaintiff,

MEMORANDUM & ORDER
16-CV-6733(JS)(SIL)

-againstMICHAEL J. SPOSATO and ARMOR
CORRECTIONAL HEALTH INC.,

Defendants.
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APPEARANCES
For Plaintiff:
Diya Jamal Pearsall, pro se
13000227
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
For Defendants:

No appearance.

SEYBERT, District Judge:
On November 28, 2016, incarcerated pro se plaintiff Diya
Jamal Pearsall (“Plaintiff”) filed a Complaint pursuant to 42
U.S.C. § 1983 (“Section 1983”) against Nassau County Sheriff
Michael

J.

Sposato

and

Armor

Correctional

Health

(together,

“Defendants”), accompanied by an application to proceed in forma
pauperis and an application for the appointment of pro bono counsel
to represent him in this case.
Upon

review

of

the

declaration

in

support

of

the

application to proceed in forma pauperis, the Court finds that
Plaintiff’s financial status qualifies him to commence this action
without prepayment of the filing fee.
1915(a)(1).

See 28 U.S.C. §§ 1914(a);

Therefore, Plaintiff’s request to proceed in forma

pauperis is GRANTED. The Clerk of the Court is directed to forward
copies of the Summonses, Complaint, and this Order to the United
States

Marshal

Service

for

service

upon

Defendants

without

prepayment of fees.

For the reasons that follow, Plaintiff’s

application for the appointment of pro bono counsel is DENIED
WITHOUT PREJUDICE AND WITH LEAVE TO RENEW when this case is trial
ready, if so warranted at that time.
DISCUSSION
I.

Appointment of Pro Bono Counsel
Unlike criminal defendants, civil litigants do not have

a constitutional right to the appointment of counsel.

However,

pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an
attorney to represent any person unable to afford counsel.”

In

deciding a motion for appointment of counsel, “the district judge
should first determine whether the indigent’s position seems likely
to be of substance.”
Cir. 1986).

Hodge v. Police Officers, 802 F.2d 58, 61 (2d

A position is likely to be of substance if it appears

to the court that the plaintiff “appears to have some chance of
success . . . .”

Hodge, 802 F.2d at 60-61.

Where a plaintiff

satisfies this threshold requirement, the Second Circuit instructs
that
the court should then consider the indigent’s
ability to investigate the crucial facts,
whether conflicting evidence implicating the
need for cross-examination will be the major
proof presented to the fact finder, the
indigent’s ability to present the case, the
complexity of the legal issues and any special
reason in that case why appointment of counsel
would be more likely to lead to a just
determination.
Hodge, 802 F.2d at 61-62.

These factors are not restrictive and

“[e]ach case must be decided on its own facts.”

Id. at 61.

Notwithstanding the requirement that pleadings drafted by

a pro se litigant, are to be construed liberally and interpreted to
raise the strongest arguments they suggest, see Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994), the Court, upon careful review of
the facts presented herein and in light of the factors required by
law as discussed above, finds that the appointment of counsel is
not warranted at this time.

Even assuming that Hodge’s threshold

requirement is satisfied, the record reflects that the legal issues
presented are not unduly complex and that Plaintiff can adequately
prosecute his claims himself pro se.
Based on this review, Plaintiff’s motion for appointment
of pro bono counsel is DENIED WITHOUT PREJUDICE AND WITH LEAVE TO
RENEW when the action is ready for trial, if warranted at that
time.

It is Plaintiff’s responsibility to retain an attorney or

continue to pursue this lawsuit pro se.

See 28 U.S.C. § 1654.

CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED and the application for the
appointment of pro bono counsel to represent Plaintiff in this case
is DENIED WITHOUT PREJUDICE AND WITH LEAVE TO RENEW when this case
is trial ready, if so warranted at that time.
The Clerk of the Court is directed to forward copies of
the Summonses, Complaint, and this Order to the United States
Marshal Service for service upon Defendants without prepayment of
fees and to mail a copy of this Memorandum and Order to the pro se
Plaintiff at his last known address.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
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that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose of
any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45,

82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: February
7 , 2017
Central Islip, New York

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