Johnson v. DHS, ICE et al

Filing 8

ORDER granting 7 request to adjourn preliminary pretrial conference pending resolution of motion to appoint counsel and denying 7 Motion to Appoint Counsel. The Preliminary Pretrial Conference is rescheduled on 7/18/2013 at 2:00 pm. Signed by Hon. H. Kenneth Schroeder, Jr on 7/1/2013. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOEL JEREMIAH JOHNSON, #076-574-307
Plaintiff
v.
13-CV-288
DHS, ICE, MICHAEL PHILLIPS,
TODD TRYON, LT. CINOTTI, DO HALL,
and DO DODDY
Defendants

DECISION AND ORDER
Plaintiff, a detainee at the Buffalo Federal Detention Facility, commenced
this action alleging that defendants violated the Americans with Disabilities Act and
denied him adequate medical care when they failed to properly secure him and his
wheelchair during transport and denied him adequate medical care following his fall
from his wheelchair to the floor of the bus. Dkt. #1.

Currently before the Court is plaintiff’s motion for appointment of counsel.
Dkt. #7. In support of his motion, plaintiff argues that the law library at the Buffalo
Federal Detention Center is inadequate and his medical condition and ongoing pain
from the incident underlying this action make it difficult to adequately represent himself.
Dkt. #7.

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
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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).

In the instant case, the facts of plaintiff’s claim are not complex and have
been clearly presented to the Court by plaintiff. 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. 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
July 1, 2013

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

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