Salino v. States et al

Filing 24

ORDER denying 15 Motion to Appoint Counsel. Signed by Hon. Leslie G. Foschio on 11/17/2014. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTHONY M. SALINO,
Plaintiff,

ORDER

v.
13-CV-481A
LARRY M. STATES,
STEVE LAWTON,
Defendants.

Plaintiff has applied to the Court for appointment of counsel pursuant to 28
U.S.C. § 1915(e) (Doc. No. 15). 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 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. Plaintiff alleges that his Eighth and Fourteenth Amendment rights were violated
when Defendants placed Plaintiff into solitary confinement. 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.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: November 17, 2014
Buffalo, New York