Booker v. Chappius et al

Filing 56

ORDER denying 55 Motion to Appoint Counsel. Signed by Hon. H. Kenneth Schroeder Jr. on 1/13/2021. (KER)-CLERK TO FOLLOW UP- by mailing copy to plaintiff

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

AMIN BOOKER, 98-A-6245,
Plaintiff,
v.
PAUL CHAPPIUS, JR., et al.,

17-CV-320V(Sr)

Defendants.

DECISION AND ORDER
Plaintiff, Amin Booker, an inmate at the Elmira Correctional Facility, filed
this pro se action seeking relief under Title 42, United States Code § 1983 and the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000 et
seq., claiming that he was denied access to religious services; denied the use of hair
trimmers to perform grooming in accordance with his religious beliefs; denied meals
that accord with his religious dietary restrictions; and denied the same privacy other
religious advisors are provided during visits in the Special Housing Unit (“SHU”). Dkt.
#12.

Currently before the Court is plaintiff’s motion for appointment of counsel.
Dkt. #55. In support of his motion, plaintiff argues that he has been unable to retain
counsel; the legal issues presented are complex; and he is unable to obtain witness
statements and expert testimony because he is in SHU. Dkt. #55.

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).

This action is in its early stages, 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, 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.

SO ORDERED.

DATED:

Buffalo, New York
January 13, 2021

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