Ruggiero v. Prack et al
Filing
54
DECISION AND ORDER denying 44 Motion to Appoint Counsel. TEXT ORDER denying 44 Motion for Extension of Time to Complete Discovery. As provided in this Court's Case Management Order (Dkt. #29), discovery shall be completed by 3/31/2014. Signed by Hon. H. Kenneth Schroeder, Jr. on February 4, 2014. (APG)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTHONY RUGGIERO, #99-A-4419,
Plaintiff,
-v-
12-CV-147(Sr)
ALBERT PRACK, et. al.,
Defendants.
DECISION AND ORDER
Plaintiff, Anthony Ruggiero, an inmate at the Southport Correctional
Facility, filed this pro se action seeking relief under Title 42, United States Code § 1983
claiming that the defendants, officials and employees of the New York State
Department of Corrections and Community Supervision, violated his constitutional
rights in a number of ways. His claims principally involve the issuance of two
misbehavior reports on July 8 and November 5, 2010 and the resulting disciplinary
hearings and sanctions imposed on plaintiff, including incarceration in the Special
Housing Unit.
Currently before the Court is plaintiff’s motion for appointment of counsel.
Dkt. #44. In support of his motion, plaintiff argues that he is unable to afford counsel
and because he is presently serving a disciplinary term at Southport, he “has absolutely
no physical access to the facility law library and is limited to two requests per day from
the ‘digital law library.’” Dkt. #44, ¶6.
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 "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, discovery is in process, 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 has demonstrated 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
February 4, 2014
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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