Marsh v. Bellinger et al

Filing 62

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER denying 61 Motion to Appoint Counsel So Ordered. Signed by Hon. Hugh B. Scott on 5/4/2009. (DRH)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK JAMES MARSH, Plaintiff,

Hon. Hugh B. Scott v. 06CV464 (CONSENT) C.O. BELLINGER, et al., Defendants. Order

Plaintiff in this action again has applied to the Court for appointment of counsel pursuant to 28 U.S.C. § 1915(e) (Docket No. 61). Under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants. Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). Assignment of counsel in this matter is clearly within the judge's discretion. See In re MartinTrigona, 737 F.2d 1254 (2d Cir. 1986). The factors to be considered in deciding whether or not to assign counsel are set forth by the Second Circuit in Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986). Counsel may be appointed in cases filed by indigent plaintiffs where it appears that such counsel will provide substantial assistance in developing petitioner's arguments, the appointment will otherwise serve the interests of justice, and where the litigant has made "a threshold showing of some likelihood of merit." Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989).

The Court has reviewed the facts presented herein in light of the factors required by law. Based on this review, plaintiff's motion for appointment of counsel is DENIED WITHOUT PREJUDICE AT THIS TIME. It remains the plaintiff's responsibility to retain his own attorney or to press forward with his lawsuit pro se. 28 U.S.C. § 1654. So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott United States Magistrate Judge Dated: Buffalo, New York May 4, 2009

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