Grays v. Elmira Correctional Facility et al
ORDER denying 91 Motion to Appoint Counsel. Signed by Hon. H. Kenneth Schroeder Jr. on 12/5/2017. (KER)(Mailed to Plaintiff)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JERRY D. GRAYS,
D. MCGRAIN, et al.,
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 threatened to
prevent him from pursuing a grievance regarding the incident. Dkt. #82.
Currently before the Court is plaintiff’s motion for appointment of counsel.
Dkt. #91. In support of his motion, plaintiff argues that he lacks the legal skills to
oppose defendants’ motions for summary judgment (Dkt. #65 & 87), and is afraid that
his case will be dismissed due to his inadequate knowledge of the law and inability to
obtain discovery. Dkt. #91.
There is no constitutional right to appointed counsel in civil cases. 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 is clearly within the judge’s discretion. In re Martin-
Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The factors to be considered in deciding
whether or not to assign counsel include the following:
Whether the indigent’s claims seem likely to be of substance;
Whether the indigent is able to investigate the crucial facts
concerning his claim;
Whether conflicting evidence implicating the need for crossexamination will be the major proof presented to the fact finder;
Whether the legal issues involved are complex; and
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, 61-62 (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. “[E]ven 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).
Plaintiff has demonstrated his ability to present his claims and arguments
to the Court. Plaintiff’s complaint, amended complaint and opposition to defendants’
motions to dismiss and for summary judgment set forth the factual basis with respect to
his claims. Plaintiff has obtained discovery from defendants and has not requested
assistance from the Court regarding outstanding discovery demands. As a result,
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. Plaintiff’s request for
appointment of counsel (Dkt. #91), is denied without prejudice.
Buffalo, New York
December 5, 2017
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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