Yeldon v. Fisher et al

Filing 75

ORDER denying 56 Motion to Appoint Counsel. Signed by Hon. H. Kenneth Schroeder, Jr. on September 15, 2009. (APG)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

WILLIE JAMES YELDON, 97-B-1012, Plaintiff, v. BRIAN FISHER, et al., Defendants. 07-CV-370(Sr)

DECISION AND ORDER Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #34.

Currently before the Court is plaintiff's motion for appointment of counsel pursuant to 28 U.S.C. § 1915(e). Dkt. #56.

There is no constitutional right to appointed counsel in civil cases. However, under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants. See, e.g., 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. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). The factors to be considered in deciding whether or not to assign counsel include the following: 1. W hether the indigent's claims seem likely to be of substance;

2.

Whether the indigent is able to investigate the crucial facts concerning his claim; W hether conflicting evidence implicating the need for crossexamination will be the major proof presented to the fact finder; W hether the legal issues involved are complex; and W hether there are any special reasons why appointment of counsel would be more likely to lead to a just determination.

3.

4.

5.

Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986).

The Court must consider the issue of appointment carefully, of course, because "every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). Therefore, the Court must first look to the "likelihood of merit" of the underlying dispute, Hendricks, 114 F.3d at 392; Cooper, 877 F.2d at 174, and "even though a claim may not be characterized as frivolous, counsel should not be appointed in a case where the merits of the . . . claim are thin and his chances of prevailing are therefore poor." Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (denying counsel on appeal where petitioner's appeal was not frivolous but nevertheless appeared to have little merit).

The Court has reviewed the facts presented herein in light of the factors required by law. Plaintiff alleges that he was denied adequate medical care regarding his back condition and following back surgery. Dkt. #1. In support of his motion,

plaintiff asserts that although he has "mastered the english [sic] since [sic] been in the United States," plaintiff is not an expert in the field of law and has been unable to obtain counsel to represent him in this matter. Dkt. #56. However, the facts in this matter are not complex and plaintiff has demonstrated an ability to articulate the relevant facts and legal theories to the Court and to demand discovery and respond to requests for discovery. Moreover, since the filing of the instant motion to appoint counsel, defendants have filed motions for summary judgment (Dkt. ## 58 and 63) and the plaintiff has filed a memorandum of law in opposition to the motions for summary judgment (Dkt. #72), including case citations and legal argument. As a result, plaintiff's motion for appointment of counsel is denied without prejudice at this time. It is the plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C. § 1654.

SO ORDERED.

DATED:

Buffalo, New York September 15, 2009

s/ H. Kenneth Schroeder, Jr. H. KENNETH SCHROEDER, JR. United States Magistrate Judge