Gutierrez v. Pinnock et al

Filing 65

ORDER denying 38 Motion for Reconsideration ; denying 42 Motion for Reconsideration ; denying 52 Motion to Appoint Counsel. Signed by Hon. H. Kenneth Schroeder, Jr on 8/10/2016. (KER)(Mailed to Plaintiff)

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 segregation 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 reconsideration of this
Court’s denial of appointment of counsel (Dkt. #38 & Dkt. #42), as well as his motion for
appointment of counsel. Dkt. #52. In support of his motions, plaintiff reiterates his prior
argument that he is unable to afford counsel and lacks the ability to communicate with
the Court in English. Dkt. #38 & Dkt. #52. Plaintiff also references his physical and
mental condition in support of his request for appointment of counsel. Dkt. #38 & 52.

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, 1260 (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 or her 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, 60-62 (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). For this reason, 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
-2-

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 [or her] chances of prevailing are
therefore poor.” Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632
(2dCir. 2001) (denying counsel on appeal where the petitioner’s appeal was not
frivolous but nevertheless appeared to have little merit).

Notwithstanding plaintiff’s illiteracy and inability to speak English, plaintiff
has consistently demonstrated a capacity to communicate the factual basis of his
claims to the Court through the assistance of other inmates. It is the Court’s
understanding that plaintiff will be able to access the assistance of a Spanish speaking
inmate at the law library at the Great Meadow Correctional Facility as well. 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 (Dkt.
##38, 42 & 52), are denied without prejudice.

SO ORDERED.

DATED:

Buffalo, New York
August 10, 2016
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

-3-