Armand v. Bartlett et al

Filing 45

DECISION AND ORDER denying 35 Motion to Appoint Counsel. Signed by Hon. H. Kenneth Schroeder, Jr. on February 18, 2014. (APG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JAMES ARMAND,
Plaintiff,
-v-

13-CV-5(Sr)

C.O. MOSKO, et al.,
Defendants.

DECISION AND ORDER
Plaintiff, James Armand, formerly an inmate at the Southport Correctional
Facility, filed this pro se action on August 25, 2011 in the United States District Court for
the Eastern District of New York, 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. Dkt. #1.

Currently before the Court is plaintiff’s motion for appointment of counsel.
Dkt. #35. Plaintiff’s motion consists of a single-page form “Application for Appointment
of Counsel.” In support of his motion, plaintiff states,
I was told by many attorneys that the Attorney General don’t
[sic] settle these cases as well as they don’t like to take on
cases started pro-se.
Currently as a direct result, I was awarded social security for
my disability, currently in care of an othopedic [sic] surgeon,
Neuroligist [sic] Doctor, physical therapy, psychotic

medicatin [sic] therapy the information within my claim
should award me an attorney.
Dkt. #35.

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 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. In fact, this Court has separately granted
plaintiff leave to file a motion to amend the complaint by March 31, 2014. Discovery
has not even commenced and it is therefore difficult to assess the merits of plaintiff’s
claim or the public benefit which could be achieved by the appointment of counsel.
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 14, 2014
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge