Sioleski v. Fischer et al

Filing 25

ORDER DENYING Plaintiff's 21 24 Motions for Appointment of Counsel, without prejudice. FURTHER, Plaintiff shall file a response to Defendant's 18 Motion to Dismiss by 7/24/2012. Defendants' reply is due by 7/31/2012. Signed by William M. Skretny, Chief Judge U.S.D.C. on 7/5/2012. (CMD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROBERT SIOLESKI,
Plaintiff,
v.

ORDER
10-CV-665S

G. MCGRAIN, et al.,
Defendants.
1.

Plaintiff, acting pro se, commenced the above-captioned action on August

12, 2010, by filing a Complaint in the United States District Court for the Western District
of New York. (Docket No. 1.) Presently before this Court is Plaintiff’s renewed Motion to
Appoint Counsel.
2.

On December 21, 2010, this Court granted Plaintiff’s Motion to Proceed In

Forma Pauperis. (Docket No. 4.) Plaintiff then, on February 13, 2012, filed a Motion for
Appointment of Counsel. (Docket No. 11.) That motion was denied without prejudice on
February 25, 2012. (Docket No. 13.) Defendants thereafter filed their Motion to Dismiss.
(Docket No. 18.) That motion remains before this Court.
4.

Instead of filing a timely response, Plaintiff again asks this Court to appoint

counsel due to Plaintiff’s inability to understand legal proceedings. (Docket Nos. 21, 24.)
5.

Civil litigants, unlike criminal defendants, do not have a constitutional right to

the appointment of counsel. In fact, this Court cannot “appoint” counsel. Rather, this Court
may only request that a volunteer attorney review and accept a plaintiff’s case. 28 U.S.C.
§ 1915(e)(1) (providing that a court “may request an attorney to represent any person
unable to afford counsel”).

6.

The standard for determining whether counsel should be appointed is set

forth in Cooper v. A. Sargenti Co., 877 F.2d 170, 171-72 (2d Cir. 1989). See also Hodge
v. Police Officers, 802 F.2d 58, 60-61 (2d Cir. 1986); Davison v. Goord, 259 F. Supp. 2d
236, 237 (W.D.N.Y. 2002) (relevant factors include merits of plaintiff’s case, plaintiff’s
ability to obtain representation, plaintiff’s ability to handle the case without assistance, and
the complexity of the legal issues).
6.

After careful consideration of the Cooper factors, this Court will deny

Plaintiff’s Motions for Appointment of Counsel without prejudice.
*****
IT HEREBY IS ORDERED, that Plaintiff’s Motions for Appointment of Counsel
(Docket Nos. 21, 24) are DENIED without prejudice.
FURTHER, that Plaintiff shall file a response to Defendants’ Motion to Dismiss
(Docket No. 18) by July 24, 2012.
FURTHER, that Defendants shall file their reply, if any, by July 31, 2012.
SO ORDERED.

Dated: July 5, 2012
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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