Chiarappa v. Meyers et al
Filing
110
DECISION AND ORDER denying 72 Motion to Appoint Counsel; denying 105 Motion to Appoint Counsel. Signed by Hon. H. Kenneth Schroeder, Jr. on September 19, 2011. (APG)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILLIAM CHIARAPPA, 08-B-3680,
Plaintiff,
09-CV-0607(Sr)
v.
MYERS, et al.,
Defendants.
DECISION AND ORDER
Currently before the Court are plaintiff’s second and third motions seeking
appointment of counsel. Dkt. ##72 and 105. This Court has previously denied a
motion (Dkt. #11) by plaintiff seeking the appointment of counsel. Dkt. #13.
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.
Whether the indigent’s claims seem likely to be of substance;
2.
Whether the indigent is able to investigate the crucial facts
concerning his claim;
3.
Whether conflicting evidence implicating the need for crossexamination will be the major proof presented to the fact finder;
4.
Whether the legal issues involved are complex; and
5.
Whether 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 harassed, assaulted and subjected to
fabricated misbehavior reports by corrections officers. Dkt. #1. In support of his
second motion for appointment of counsel, plaintiff asserts that he is unable to
investigate the “crucial facts” relating to his claim. Dkt. #72, ¶ 2. In addition, plaintiff
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states that because defendants are unwilling to settle this matter, the prosecution of this
matter will require more research than plaintiff is capable of completing due to his
incarceration and his lack of legal education. Id. at ¶ 3. To illustrate his lack of legal
education, plaintiff further claims that he made an error in connection with his discovery
requests and that because he lacks any public speaking ability, he will be unable to
properly examine and cross-examine the witnesses who, he asserts, will present
conflicting evidence. Id. at ¶¶ 4-5. Finally, plaintiff argues that because his complaint
has not been “targeted for dismissal,” therefore, his claim must “hold[ ] some substance
of being true.” Id. at ¶ 6.
Notwithstanding plaintiff’s assertions to the contrary, plaintiff has not
established, at this 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. Indeed, throughout the pendency of this matter, plaintiff has availed himself of
various discovery devices, including requests for admissions, document demands and
interrogatories. Finally, the Court notes that plaintiff recently updated his address with
the Court and it appears that plaintiff is no longer incarcerated and as such, he will no
longer face the same constraint to conducting legal research as he set forth in support
of the instant motion. Plaintiff’s third motion seeking the appointment of counsel (Dkt.
#105) is a one-page document which references his second motion. The Court will
treat the third motion as incorporating by reference the arguments made in support of
his second motion seeking the appointment of counsel.
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Accordingly, for the foregoing reasons, plaintiff's motions for appointment
of counsel (Dkt. ##72 and 105) are 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 19, 2011
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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