Frederick v. Shehan et al
DECISION AND ORDER denying 93 Plaintiff's Motion to Appoint Counsel. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 4/27/17. (JPL) (A copy of this Decision and Order has been mailed to Plaintiff)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
PATRICK MURPHY, Officer, MICHAEL
ROBYCK, Officer, JAMIE ROBINSON, Officer,
DONALD HOLTON, Sergeant, and
Plaintiff Michael Frederick ("Plaintiff') filed this action on September 15, 2010,
alleging violations of his civil rights.
(Dkt. 1). Following discovery and dispositive
motions, Plaintiff's claims for excessive use of force, failure to supervise, and failure to
intervene remain. (See Dkt. 64; Dkt. 74). A jury trial is scheduled to begin on September
11, 2017. Presently before the Court is Plaintiff's fifth motion to appoint counsel. (See
Plaintiff argues that he is indigent, that his imprisonment limits his ability to
litigate the "complex" issues in this case, that counsel would be better able to examine
witnesses during trial, and that Plaintiff has tried, but failed, to secure counsel on his
own. (Id. at iii! 1-4 ).
For the reasons stated below, Plaintiff's motion is denied.
Under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent
litigants, Sears, Roebuck & Co. v. Charles Sears Real Estate, Inc., 865 F.2d 22, 23-24 (2d
Cir. 1988), and the assignment of pro bona counsel in civil cases is within the trial
court's discretion. Jn re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The court
must evaluate "the merits of [the] plaintiffs case, the plaintiffs ability to pay for private
counsel, his efforts to obtain a lawyer, the availability of counsel, and the plaintiffs
ability to gather the facts and deal with the issues if unassisted by counsel." Cooper v. A.
Sargenti Co., Inc., 877 F .2d 170, 172 (2d Cir. 1989). Particular attention must be paid to
the merits of the plaintiffs claim. Id. ("Even where the claim is not frivolous, counsel is
often unwarranted where the indigent's chances of success are extremely slim." (quoting
Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986))). This is because "every
assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer
lawyer available for a deserving cause." Id. Additionally, for prison inmates, the court
must also give weight to the plaintiffs lack of practical access to attorneys. Id. at 17374.
Plaintiff was in prison when he filed the complaint, and remains in custody.
Plaintiff has previously been granted leave to proceed informa pauperis. (Dkt. 3). In his
in forma pauper is motion, Plaintiff stated that he was incarcerated, had not worked in the
past 12 months, and did not have any cash or other assets. (Dkt. 2 at 1-2). A prison
official certified that Plaintiffs average account balance for the previous six months was
$50.02. (Id. at 2). Plaintiff has conclusively shown that he is indigent, and has met the
threshold test for appointing counsel.
However, on balance, the Cooper factors weigh against appointing counsel at this
time. As the Second Circuit has noted, "[t]he vast majority of litigation on behalf of
personal claimants is financed initially by lawyers who accept the representation for a
contingent fee in the expectation of being rewarded by a share of the winnings." Cooper,
877 F .2d at 173. Plaintiff states that he "constantly strives to obtain a lawyer on his own"
but he has not been able to secure counsel. (Dkt. 93 at
iJ 4). Plaintiff attaches a letter
from a law firm declining to take Plaintiffs case. (Id. at 3; see also Dkt. 48 at 5-8
(attaching letters from law firms declining to represent Plaintiff); Dkt. 82 at 3 (same)).
Plaintiff has made attempts to find counsel. However, this, in itself, is insufficient to
warrant the appointment of counsel.
The Court finds that Plaintiff has not established that he has a likelihood of
success on the merits.
The claims presented revolve around a single use of force
incident. Plaintiff claims that during a cell extraction he was beaten and choked by the
Defendant correctional officers. (Dkt. 4 at 7-8). Plaintiff further claims that Defendant
Donald Holton, the correctional officers' supervisor, failed to properly supervise and
failed to intervene in his beating.
(Id. at 9).
The trial will turn on the jury's
determination as to the credibility of the witnesses, not any complex factual or legal
issues which Plaintiff is incapable of handling on his own.
And, despite Plaintiffs
assertion to the contrary, the trial is unlikely to require extensive cross-examination for
which expert counsel is required.
Up to this point, Plaintiff has submitted a clear, well-drafted amended complaint
(see generally id.), and has drafted motion papers containing logical factual arguments in
support of his requests for relief. (See, e.g., Dkt. 93 ). In fact, Plaintiff successfully
defended against Defendants' repeated dispositive motions in this case. (See Dkt. 64;
During an appearance on April 25, 2017, Plaintiff asserted, for the first time, that
he had mental health issues which limited his ability to represent himself. (See Dkt. 102).
Plaintiff did not raise this issue in the instant motion, or in any of his previous motions to
appoint counsel. (See Dkt. 17; Dkt. 20; Dkt. 48; Dkt. 82; Dkt. 93). Plaintiff has not
submitted sufficient information upon which this Court can determine that his claimed
mental health problems would affect his ability to represent himself at trial. Additionally,
the Court has held two appearances with Plaintiff and has found Plaintiff able to
succinctly and competently articulate his thoughts in a manner which suggests that he is
capable of presenting his case to a jury without the assistance of counsel. See Fowler v.
Fischer, 13-CV-6546-FPG-JWF, 2017 WL 1194377, at *3 (W.D.N.Y. Mar. 30, 2017)
appointment of counsel where the "plaintiff appear[ ed]
knowledgeable and equipped to understand and handle the litigation"); Castro v.
Manhattan E. Suite Hotel, 279 F. Supp. 2d 356, 358 (S.D.N.Y. 2003) (denying
appointment of counsel where "the case [did] not present novel or overly complex legal
issues, and there [was] no indication that [the plaintiff] lack[ ed] the ability to present his
Balancing the factors set forth in Cooper, the Court finds that appointing counsel
is inappropriate, and, therefore, Plaintiffs motion (Dkt. 93) is denied.
Dated: April 27, 2016
Rochester, New York
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