Gutierrez v. Pinnock et al

Filing 33

DECISION AND ORDER denying 20 Motion to Appoint Counsel ; denying 28 Motion to Appoint Counsel. SO ORDERED. Signed by Hon. H. Kenneth Schroeder, Jr. on November 3, 2015. (APG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
OMAN GUTIERREZ,
Plaintiff,

13-CV-1237S(Sr)

v.
PAUL CHAPPIUS, et al.,
Defendants.

DECISION AND ORDER
Plaintiff, an inmate of the New York State Department of Corrections and
Community Supervision (“NYSDOCCS”), filed this pro se action on or about December
31, 2013. Thereafter, plaintiff filed an Amended Complaint seeking relief pursuant to 42
U.S.C. § 1983 based upon allegations that his rights were violated when he was
transferred to administrative segregative confinement upon his transfer to Attica
Correctional Facility on December 30, 2011 without due process. Dkt. #4.

Currently before the Court are plaintiff’s motions for appointment of
counsel. Dkt. #20 and 28. In support of his motions, plaintiff argues that he is unable to
afford counsel and is unable to read or write in any language. Dkt. ##20 and 28.

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) (denying
counsel on appeal where petitioner's appeal was not frivolous but nevertheless
appeared to have little merit).
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This action is in its early stages and discovery is in process, indeed,
counsel for defendants just filed its Rule 26 disclosures on October 30, 2015 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, notwithstanding his inability to read
or write in any language, plaintiff has demonstrated a capacity to communicate the
factual basis of his claims to the Court. 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. Plaintiff’s motions seeking the appointment of counsel (Dkt.
##20 and 28) are denied without prejudice.

SO ORDERED.

DATED:

Buffalo, New York
November 3, 2015

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

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