Smith v. Erie County Holding Center et al

Filing 18

ORDER denying 16 Motion to Appoint Counsel. Signed by Hon. H. Kenneth Schroeder, Jr on 5/10/2010. (KER)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

W IL L IAM SMITH, 08-B-0527, P la in t if f , v. E R IE COUNTY HOLDING CENTER, et al., D e fe n d a n ts . 0 8 - C V - 0 4 8 5 ( S r)

DECISION AND ORDER Currently before the Court is plaintiff's motion for appointment of counsel. Dkt. #37.

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. 2. W hether the indigent's claims seem likely to be of substance; W hether 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

3.

4.

5.

W hether there are any special reasons why appointment of counsel would be more likely to lead to a just determination.

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. Inc., 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 appropriate medical care for his hearing impairment; denied reasonable accommodations for his disability; and was disciplined for failing to obey an order he could not hear. Dkt. #7. In support of his motion for appointment of counsel, plaintiff asserts that the issues involved are complex and that he is a high school dropout and is hearing impaired. Dkt. #16. However,

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plaintiff has not established, at this early stage of the proceedings, that he is unable to represent himself in this matter and that appointment of counsel is warranted under the factors set forth above.

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 May 10, 2010

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

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