Jackson v. Tomberillo et al

Filing 28

ORDER denying 27 Motion to Appoint Counsel ; granting 27 Motion for Extension of Time to Amend ; granting 27 Motion for Extension of Time to Complete Discovery. Second Amended Scheduling Order is filed separately. Signed by Hon. Leslie G. Foschio on 2/18/2015. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KENTREL JACKSON,
Plaintiff,

ORDER

v.
11-CV-289F
H. TOMBERILLO,
ANNA SOPKA,
Defendants.

Plaintiff has applied to the Court for appointment of counsel pursuant to 28
U.S.C. § 1915(e). 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 cross-examination
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., 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 Plaintiff’s 8th Amendment claim of improper
medications and the alleged 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 is the plaintiff's responsibility to retain an
attorney or press forward with this lawsuit pro se. 28 U.S.C. § 1654.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: February 18, 2015
Buffalo, New York