Barnes et al v. Smith et al
Filing
50
OPINION AND ORDER #102876 re: 15 APPLICATION for the Court to Request Counsel, filed by Arrello Barnes. After careful review of Barnes's application in light of the aforementioned principles, the Court finds that appointment of counsel is not warranted in this case. Accordingly, the motion is DENIED. (Signed by Magistrate Judge Ronald L. Ellis on 2/4/2013) (cd) Modified on 2/5/2013 (rsh).
{ USDC SDNY
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\ DOCUMENT
BLECTRONiCALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ARRELLO BARNES,
~I
DOC#: __----~~
DATE FILED: 2 - ~- \"3
Plaintiff,
OPINION AND ORDER
- against12 Civ. 1916 (PKC) (RLE)
SUEANN SMITH, CARLA STEINBERG-ROSS,
DR. SYED MAHMUD, OSMAN YILDIZ,
and BRIAN FISHER.
Defendants.
RONALD L. ELLIS, United States Magistrate Judge:
I.
INTRODUCTION
Pro Se Plaintiff Arrello Barnes ("Barnes") brings this action against Defendants Brian
Fisher, Sueann Smith, Dr. Syed Mahrnud, Carla Steinberg-Ross, and Osman Yildiz (collectively
known as "Defendants") alleging violations of the Eighth and Fourteenth Amendments. Before
the Court is Barnes's motion for appointment of counsel. For the reasons set forth below,
Barnes's motion is DENIED.
II.
DISCUSSION
Civil litigants, unlike criminal defendants, do not have a constitutional right to the
appointment of counsel. 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
M\'\\'\ot
off01'd l'l'\UfIQ~t it mu~t th/?n /?Y~mine. the rnerit~
oflhe case and detennine whether the
indigent's position "seems likely to be of substance." See Hodge v. Police Officers, 802 F.2d 58
(2d Cir. 1986). After the two threshold determinations have been made, 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 fact finder; (3) the indigent's ability to present the case; (4) the complexity of
the 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.
Barnes satisfies the threshold requirement of indigence insofar as his request to proceed
in forma pauperis was granted on May 21, 2012. See Docket No.9. He has shown the ability to
properly file a complaint including the relevant facts of his case. Furthermore, this case does not
present novel or overly complex legal issues. Barnes has not given a clear indication that he is
unable to provide opposition to the defendant's motion to dismiss or that he lacks the ability to
present his case.
III.
CONCLUSION
After careful review of Barnes's application in light of the aforementioned principles, the
Court finds that appointment of counsel is not warranted in this case. Accordingly, the motion is
DENIED.
SO ORDERED this 4th day of February 2013
New York, New York
The Honorable Ronald L. EHis
United States Magistrate Judge
2
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