Carlton v. Pearson
ORDER denying 5 Motion to Appoint Counsel. Signed by Hon. H. Kenneth Schroeder Jr. on 4/11/2017. (KER)(Mailed to Plaintiff)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
Plaintiff commenced this action, pro se, pursuant to 42 U.S.C. § 1983,
alleging that defendant was deliberately indifferent and failed to protect him from
another inmate at the Wende Correctional Facility on March 11, 2014. Dkt. #1.
Currently before the Court is plaintiff’s motion for appointment of counsel.
Dkt. #5. In support of the motion, plaintiff argues that he has mental health issues and
has been unable to obtain counsel. Dkt. #5.
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 MartinTrigona, 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).
This case is in its initial stages, making it difficult to assess the merits of
plaintiff’s claim. However, there is no indication that plaintiff is incapable of presenting
his arguments to the Court. Plaintiff’s complaint and motion for appointment of counsel
clearly state his position. 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 motion (Dkt. #5), is denied without prejudice.
Buffalo, New York
April 11, 2017
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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