Grays v. Elmira Correctional Facility et al

Filing 20

ORDER denying 17 Motion to Appoint Counsel. Signed by Hon. H. Kenneth Schroeder, Jr on 4/14/2015. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JERRY D. GRAYS,
Plaintiff,
v.
13-CV-532(Sr)
D. MCGRAIN, et al.,
Defendants

DECISION AND ORDER
Plaintiff commenced this action, pro se, alleging that on August 31, 2011,
he was assaulted by corrections officers at the Elmira Correctional Facility (“Elmira”),
denied timely medical care for injuries sustained in the assault and was threatened and
had personal property taken from him in an attempt to prevent him from pursuing a
grievance regarding the incident . Dkt. #1.

Currently before the Court is plaintiff’s motion for appointment of counsel.
Dkt. #17. In support of his motion, plaintiff argues that he requires assistance to identify
corrections officers involved in the assault and to protect his interests during his
deposition. Dkt. #17.

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)

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(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 appears capable of seeking the identity of John and
Jane Doe defendants through discovery, including, for example, interrogatories of
identified defendants asking for the name of currently unidentified defendants by virtue
of plaintiff’s description of the unidentified defendants or a request to identify other
officers present during the alleged incidents and a document demand for the Inspector
General’s investigation of this incident.1 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
April 14, 2015
s/ H, Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

1

Although defendants produced the Inspector General’s interview of plaintiff (Dkt. #143, p.8), it does not appear that the Inspector General’s report of investigation has been
produced.

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