Campos v. N.Y.C.D. of Correction et al
Filing
52
MEMORANDUM OPINION AND ORDER: re: 49 MOTION to Appoint Counsel filed by Kenny Campos. After a careful review of Campos's application, the Court finds that the appointment of counsel is warranted in this case. Accordingly, Campos's motion is GRANTED. The Pro Se Office of the Court is directed to attempt to locate a volunteer attorney to represent Campos as soon as reasonably possible. Discovery shall proceed in this case. Campos is advised that although the Court finds it appropriate to request volunteer counsel, there is no guarantee that a volunteer attorney will decide to take the case. If no attorney volunteers, there is nothing more the Court can do. In this case, if Campos wishes to continue the case, he must do so pro se. This decision resolves Docket #49. SO ORDERED. (Signed by Magistrate Judge Ronald L. Ellis on 4/29/2013) (rsh)
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USDCSDNY
' DOCUMEf'iT
( ELECfR.ONICALLY FILED
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, DOC #:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KENNY CAMPOS,
=-=::-~---DATE FlUID: '-\- "Z-~ - J.3
Plaintiff,
MEMORANDUM
OPINION & ORDER
- against-
12 Civ. 951 (RLE)
THE CITY OF NEW YORK, et aI.,
Defendants.
RONALD L. ELLIS, United States Magistrate Judge:
I. INTRODUCTION
On June 17, 2012, pro .'Ie plaintiff Kenny Campos ("Campos") submitted a Second
Amended Complaint to the Pro Se Office in this district, and on June 20, 2012, it was filed with
the Clerk of the Court. This is an excessive force and inadequate medical care case arising out
of a May 19,2010 altercation that took place while Campos was in the custody of the New York
City Department of Correction and incarcerated at Rikers Island. On March 20, 2012, Chief
Judge Loretta Preska granted Campos's application to proceed informa pauperis. On January
11,2013, Campos filed an application to the Court to request counsel, and subsequently,
requested counsel during a March 26, 2013 settlement conference. For the reasons which
follow, Campos's request for the appointment of counsel is GRANTED.
II. DISCUSSION
Civil litigants, unlike criminal defendants, do not have a constitutional right to the
appointment of counsel. See United States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981) (noting
Sixth Amendment right to counsel inapplicable to civil cases). However, under 28 U.S.C. §
1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford
counsel." The Court of Appeals for the Second Circuit has articulated the factors that a court
should consider in deciding whether to appoint counsel for an indigent civil litigant. The court
"exercises substantial discretion, subject to the requirement that it be guided by sound legal
principle." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) (citing Jenkins v.
Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983)).
The court's first inquiry is whether plaintiff can afford to obtain counsel. See Terminate
Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). If the court finds that a plaintiff
cannot afford counsel, it must then examine the merits of the case and determine whether the
indigent's position "seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58,61
62 (2d Cir. 1986). After the two threshold determinations have been made as to indigence and
merit, the court has discretion to consider the following factors: (1) the indigent's ability to
investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross
examination will be the major proof presented to the factfinder; (3) the indigent's ability to
present the case; (4) the complexity ofthe legal issues involved; and (5) any special reason in
that case why appointment of counsel would be more likely to lead to a just determination. Id. at
61-62.
Campos satisfies the threshold requirement of indigence insofar as his request to proceed
injormapauperis was granted on March 20,2012. Campos also satisfies the threshold
requirement of a showing of some likelihood of merit. Campos alleges that a group of correction
officers, including Defendant Correction Officer Rodriguez, used excessive force when they
handcuffed Campos, unnecessarily sprayed his face with pepper spray, and subsequently broke
his nose with a baton. (Second Am. CompI. 3-5.) Campos also alleges that after this assault, he
received inadequate medical care for his nose, and he was stripped and forced to walk through
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open areas nude. (Id.) Annexed to Campos's Complaint are medical records confirming that
Campos suffered a fractured nose, facial contusions, and an injury to his right thumb. (Id at 21
24.) On these allegations, no motion to dismiss has been filed, the assertions in the complaint
are not inherently incredible, and the Parties attempted to settle this matter during a March 26,
2013 conference after engaging in some discovery. While the Court makes no finding of the
ultimate merits or wrongdoing by anyone in this matter, at this stage of the litigation, Campos
has demonstrated enough potential merit to have his case considered by the Court's Pro Bono
Panel. Furthermore, Campos's language barrier has hindered his ability to fully understand court
proceedings and makes it important that he be represented both in discovery and at trial.
After a careful review of Campos's application, the Court finds that the appointment of
counsel is warranted in this case. Accordingly, Campos's motion is GRANTED. The Pro Se
Office of the Court is directed to attempt to locate a volunteer attorney to represent Campos as
soon as reasonably possible. Discovery shall proceed in this case. Campos is advised that
although the Court finds it appropriate to request volunteer counsel, there is no guarantee that a
volunteer attorney will decide to take the case. If no attorney volunteers, there is nothing more
the Court can do. In this case, if Campos wishes to continue the case, he must do so pro se.
This decision resolves Docket #49.
SO ORDERED this 29th day of April 2013
New York, New York
The Honorable Ronald L. Ellis
United States Magistrate Judge
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