Perez v. The State of New York
ORDER denying 53 Motion to Appoint Counsel. Signed by Hon. Leslie G. Foschio on 6/27/2017. (SDW)(Copy of Order mailed to Pro Se Plaintiff at Wende Correctional Facility)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
THE STATE OF NEW YORK,
Plaintiff has applied to the Court for appointment of counsel pursuant to 28 U.S.C.
' 1915(e) (Dkt. 53). 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
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 Defendants failed to provide proper medical treatment and
reasonable accommodations for his Meniere’s disease. 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
Plaintiff should review the entire Guidelines, and then he should focus his attention on pages 14-19
regarding discovery, since his lawsuit is in the discovery stage at this time.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: June 27, 2017
Buffalo, New York
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