Lamphear v. Rozell et al

Filing 25

ORDER denying 23 Motion to Appoint Counsel. Signed by Hon. H. Kenneth Schroeder, Jr on 10/1/2013. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JAMIE LAMPHEAR, 02-B-0336,
Plaintiff,
v.
12-CV-0175(Sr)
E. ROZELL, et al.,
Defendants.

DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
assignment of this case to the undersigned to conduct all proceedings in this case,
including the entry of final judgment. Dkt. #15.

Jamie Lamphear, an inmate of the New York State Department of
Correctional Services (“DOCS”), commenced this action pursuant to 42 U.S.C. § 1983,
alleging that Corrections Officers Rozell and Reppert used excessive force upon him
and that Dr. Canfield failed to adequately treat his injuries. Dkt. ##1 & 7.

Currently before the Court is plaintiff’s motion for appointment of counsel.
Dkt. #23. In support of his motion, plaintiff argues that the legal issues are complex; he
has limited knowledge of the law; he suffers from mental illness; and he has been
unable to retain private counsel. Dkt. #23.

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, 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 and to request relevant discovery. 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
October 1, 2013

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