Brown v. Chappius et al
ORDER denying 23 Motion to Appoint Counsel ; denying 25 Motion to Appoint Counsel. Signed by Hon. Leslie G. Foschio on 10/23/2013. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL CHAPPIUS, JR., CRAIG DIEGO,
STEPHEN WENDERLICH, PAUL YOUMANS,
JAMEY MORRIS, JEREMY TAYLOR,
DANIEL STAIGHT, and KIRBY BUNNELL,
Plaintiff has applied to the Court for appointment of counsel pursuant to 28
U.S.C. § 1915(e) (Doc. Nos. 23 and 25). 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
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 the 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. Nevertheless,
in order to assist plaintiff in pursuing this case pro se, the Clerk of the Court is directed
to send plaintiff the Court’s booklet entitled Pro Se Litigation Guidelines.1
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: October 23, 2013
Buffalo, New York
Plaintiff should review the entire Guidelines, and then he should focus his attention on pages
14-19 regarding discovery, since his lawsuit is in the discovery stage at this time.
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