Sloane v. Robinson et al

Filing 18

ORDER denying 12 Motion to Appoint Counsel. Signed by Hon. H. Kenneth Schroeder, Jr on 8/9/2013. (KER)

Sloane v. Robinson et al

Doc. 18

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DEREK SLOANE, 07-A-1140,
Plaintiff,

12-CV-25(Sr)

v.
LIEUTENANT BORAWSKI, et al.,
Defendants.

DECISION AND ORDER
Plaintiff, an inmate in the custody of the New York State Department of
Corrections and Community Supervision (“NYSDOCCS”), commenced this action
pursuant to 42 U.S.C. § 1983 alleging that he was subjected to excessive force; denied
adequate medical care for injuries sustained during the use of excessive force; and
denied due process during the course of a disciplinary hearing related to the use of
excessive force. Dkt. ##1 & 6.

Currently before the Court is plaintiff’s motion for appointment of counsel.
Dkt. #12. In support of his motion, plaintiff argues that his claim has merit and he has
been unable to retain private counsel. Dkt. #12.

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

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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 "volunteer lawyer time is a precious commodity.” Cooper v. A. Sargenti Co.
Inc., 877 F.2d 170, 172 (2d Cir. 1989). Therefore, the Court must not allocate pro bono
resources “arbitrarily, or on the basis of the aggressiveness and tenacity of the
claimant,” but should instead distribute this resource “with reference to public benefit.”
Id. Moreover, the Court must consider 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).

This action is in its early stages, making it difficult to assess the merits of
plaintiff’s claim or the public benefit which could be achieved by the appointment of
counsel. Moreover, plaintiff’s complaint demonstrates a capacity to communicate the
factual basis of his claims to the Court. Accordingly, plaintiff has not established that
the appointment of counsel is warranted at this time under the factors set forth above.
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
August 8, 2013

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