Perez v. County of Monroe et al

Filing 44

ORDER denying without prejudice to renew 38 Motion to Appoint Counsel. Signed by Hon. Jonathan W. Feldman on 9/13/2012. (RJO)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HECTOR PEREZ,
Plaintiff,
DECISION AND ORDER
10-CV-6216

v.
COUNTY OF MONROE and
DR. ROBERT STERN,
Defendants.

Preliminary Statement
Pro se plaintiff brings the instant action pursuant to 42
U.S.C. § 1983, alleging denial of medical care and deliberate
indifference to medical needs in violation of his constitutional
rights.

See Complaint (Docket #1).

In his Complaint, plaintiff

alleges, inter alia, that while he was confined at the Monroe
County Jail he experienced severe pain in his hips, shoulders,
ankles

and

medications.

knees
Id.

from

being

Currently

improperly
pending

prescribed

before

plaintiff’s motion for appointment of counsel.

the

certain
Court

is

(Docket # 38).

Discussion
With the instant motion to appoint counsel, plaintiff claims
that the appointment of counsel is necessary because, inter alia,
he (i) “suffer[s] from mental health disabilities,” (ii) lacks
knowledge of the law, (iii) “suffer[s] from bipolar, depression and
anxiety,” and (iv) has “short and long term memory problems.”

(Docket # 38). For the reasons that follow, plaintiff's motion for
appointment of counsel (Docket # 38) is denied without prejudice to
renew.
Under 28 U.S.C. § 1915(e), the Court may appoint counsel to
assist indigent litigants.

Sears, Roebuck & Co. v. Charles W.

Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988).

An

assignment of counsel is a matter within the judge's discretion.
In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984).

"There

is no requirement that an indigent litigant be appointed pro bono
counsel in civil matters, unlike most criminal cases."
Hopkins, 14 F.3d 787, 789 (2d Cir. 1994).

Burgos v.

The factors to be

considered in deciding whether or not to assign counsel were set
forth by the Second Circuit in Hodge v. Police Officers, 802 F.2d
58, 61-62 (2d Cir. 1986):
[T]he district judge should first determine whether the
indigent’s position seems likely to be of substance. If
the claim meets this threshold requirement, the court
should
then
consider
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 in that case why
appointment of counsel would be more likely to lead to a
just determination.
Applying

the

factors

set

forth

in

Hodge,

I

find

that

plaintiff's allegations satisfy the initial threshold showing of
merit.

See, e.g., Varricchio v. Cnty. of Nassau, 702 F. Supp. 2d

40, 58-59 (E.D.N.Y. 2010)(plaintiff's allegations that defendants

2

prescribed and administered improper medication that was dangerous
to his health states a claim); West v. Brickman, No. 07- CV-7260
(PKC)

(DF),

2008

WL

3303773,

at

*4-5

(S.D.N.Y.

Aug.

6,

2008)(plaintiff's claims that defendants were indifferent to her
medical needs and failed to provide prescribed pain and blood
pressure medication satisfied the threshold showing of merit);
Brown v. Austin, No. 05 Civ. 9443 PKC/RLE, 2006 WL 278185, at *1-2
(S.D.N.Y.

Feb.

3,

2006)(plaintiff's

allegations

that

he

was

intentionally denied access to medical care might have merit).
However, having reviewed the Complaint and considered the nature of
the factual and legal issues involved, as well as the plaintiff's
ability to present his claims, I conclude that appointment of
counsel is not warranted at this particular time.
"Volunteer lawyer time is a precious commodity" that "should
not be allocated arbitrarily." Cooper v. A. Sargenti Co., 877 F.2d
170, 172 (2d Cir. 1989).

Plaintiff's Complaint is detailed in

nature and adequately describes the events that led to his alleged
injuries. The factual circumstances surrounding plaintiff's claims
do

not

appear

to

be

unusually

complicated.

See

Martino

v.

Westchester Cnty. Dep't of Corrs., No. 06 Civ. 9900PKCRLE, 2007 WL
958516,

at

*1

(S.D.N.Y.

Mar.

28,

2007)(denying

plaintiff's

application for appointment of counsel after finding that her
claims of deliberate medical indifference in her civil rights
complaint "d[id] not present novel or complex legal issues").

3

At

least at this point in time, plaintiff has shown that he is capable
of prosecuting his case, as he has drafted coherent and appropriate
pleadings, has drafted motion papers supported by legal research
(see

Docket

#

30),

and

appears

equipped

to

understand

the

litigation process. See Castro v. Manhattan E. Suite Hotel, 279 F.
Supp. 2d 356, 358 (S.D.N.Y. 2003)(denying appointment of counsel
after noting that "there is no indication that [plaintiff] lacks
the ability to present his case"); Harris v. McGinnis, No. 02 Civ.
6481(LTSDF),

2003

WL

21108370,

2003)(denying

application

after

at

*2

finding

(S.D.N.Y.

that

May

plaintiff

14,

seemed

capable of understanding and presenting the legal issues raised by
his claims, as his papers were clear, addressed relevant issues and
cited pertinent case law); Avent v. Solfaro, 210 F.R.D. 91, 93-94
(S.D.N.Y. 2002)(where plaintiff demonstrated his ability to present
facts, draft pleadings and motions "backed by legal research,"
court declined to appoint counsel); Walters v. NYC Health Hosp.
Corp., No. 02 Civ. 751 (JGKDF), 2002 WL 31681600, at *2 (S.D.N.Y.
Nov. 25, 2002)(finding that plaintiff’s “purported disability has
not significantly hampered Plaintiff’s ability to prosecute his
case to date”).
Plaintiff’s

pro

se

Complaint

sets

forth

in

a

clear

and

coherent way the facts of his treatment, the claimed error in
medications and the damage the medications errors allegedly caused.
Given the limited resources available with respect to pro bono

4

counsel, I find no "special reason" why appointment of counsel at
this stage would be more likely to lead to a just determination.
See Harris v. McGinnis, 2003 WL 21108370, at *2 (application denied
where plaintiff "offered no special reason why appointment of
counsel would increase the likelihood of a just determination").
Finally, all the deadlines in the Court's Amended Scheduling Order
(Docket # 37) entered in January 2012 have expired.

Neither party

has requested an extension of time regarding discovery and defense
counsel has not made a dispositive motion or indicated an intention
to do so.

Accordingly, this Court will transfer the file to Judge

Larimer so that a trial date may be established.

Should Judge

Larimer determine that the appointment of counsel would provide
substantial assistance to plaintiff during trial he may, of course,
revisit the appointment of counsel issue at that time.

Conclusion
Plaintiff’s motion to appoint counsel (Docket # 38) is denied
without prejudice to renew.
SO ORDERED.

______________________________
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated: September 13, 2012
Rochester, New York

5