Goodson v. Isch et al

Filing 79

ORDER: Plaintiff's motion 78 is DENIED IN PART and DENIED IN PART WITHOUT PREJUDICE, in that Plaintiff's request for appointed counsel is denied and his request for a stay to obtain counsel is denied without prejudice. Defendants shall re send their summary judgment materials to Plaintiff's new address and file a certificate of service with the Court by April 1, 2019. Plaintiff's materials in opposition to Defendants' motion must be filed by May 3, 2019. Defendants may file a reply within 15 days of Plaintiff's response. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 3/25/2019. A copy of the NEF, this order, and the Court's prior scheduling order will be sent to the pro se Plaintiff. (MFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
MITCHELL S. GOODSON,
Plaintiff,

Case # 16-CV-371-FPG

v.

ORDER

RACHEL ISCH, et al.,
Defendants.
___________________________________
In a letter dated March 21, 2019, pro se Plaintiff Mitchell S. Goodson requests that the
Court either stay the case so that he can obtain counsel or appoint counsel to represent him. ECF
No. 78. Currently pending before the Court is Defendants’ motion for summary judgment, ECF
No. 75, and Plaintiff’s response to the motion is due by April 12, 2019. See ECF No. 76.
Plaintiff’s request to stay the case is DENIED WITHOUT PREJUDICE. Plaintiff has not
shown that a stay is appropriate under the circumstances. Plaintiff has not described the efforts he
has undertaken to obtain counsel or demonstrated a realistic likelihood that a stay will enable him
to find counsel. Moreover, Plaintiff does not ask for a specific timeframe for a stay. The Court
declines to indefinitely stay the case given that it is unclear what efforts Plaintiff has made or
intends to make to obtain counsel. Nevertheless, Plaintiff’s request is denied without prejudice.
In other words, this order does not preclude Plaintiff from requesting a stay again if he provides
more information to support and justify his request.
Plaintiff’s request for appointment of counsel is DENIED. 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 Sears Real Estate, Inc., 865

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F.2d 22, 23 (2d Cir. 1988). The assignment of counsel in civil cases is within the trial court’s
discretion. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The Court must consider
the issue of appointment carefully, because “every assignment of a volunteer lawyer deprives
society of a volunteer lawyer available for a deserving cause.” Cooper v. A. Sargenti Co., 877
F.2d 170, 172 (2d Cir. 1989). In determining whether to assign counsel, the Court considers
several factors, including whether the indigent’s claims seem likely to be of substance; the
indigent’s ability to investigate the crucial facts; whether conflicting evidence implicating the need
for cross-examination will be the major proof presented to the fact finder; the indigent’s ability to
present the case; the complexity of the legal issues; and any special reason why appointment of
counsel would be more likely to lead to a just determination. See Hendricks v. Coughlin, 114 F.3d
390, 392 (2d Cir. 1997); Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986).
After considering these factors, the Court finds that the appointment of counsel is not
warranted. This action is not complicated: it concerns a series of discrete incidents where
Defendants allegedly used excessive force. In addition, Plaintiff’s prior submissions show that he
can adequately present his claims: in this litigation, he has conducted discovery, crafted relevant
motions, and raised relevant objections. There are no special reasons that would favor appointment
of counsel.
In the interests of justice, however, the Court will extend the time for Plaintiff to respond
to Defendants’ motion for summary judgment.

Plaintiff updated his address shortly after

Defendants filed their motion for summary judgment and this Court issued a scheduling order. It
is unclear whether Plaintiff has obtained all of the materials relevant to Defendants’ motion.
Therefore, the Court will send Plaintiff another copy of the Court’s scheduling order (ECF No.
76). Defendants are directed to resend their summary judgment materials to Plaintiff’s new

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address. Defendants shall file a certificate of service with the Court by April 1, 2019. Plaintiff
must respond to Defendants’ motion by May 3, 2019. Defendants may file a reply within 15 days
of Plaintiff’s response.
Accordingly, Plaintiff’s motion (ECF No. 78) is DENIED IN PART and DENIED IN
PART WITHOUT PREJUDICE, in that Plaintiff’s request for appointed counsel is denied and his
request for a stay to obtain counsel is denied without prejudice. Defendants shall resend their
summary judgment materials to Plaintiff’s new address and file a certificate of service with the
Court by April 1, 2019. Plaintiff’s materials in opposition to Defendants’ motion must be filed by
May 3, 2019. Defendants may file a reply within 15 days of Plaintiff’s response.
IT IS SO ORDERED.
Dated: March 25, 2019
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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