Frederick v. Shehan et al

Filing 28

DECISION ORDER denying without prejudice 20 Motion to Appoint Counsel; denying without prejudice 17 Motion to Appoint Counsel. It is plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se. Signed by Hon. Marian W. Payson on 5/17/2012. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MICHAEL FREDERICK,
DECISION & ORDER
Plaintiff,
10-CV-6527
v.
MICHAEL SHEHAN, et al,
Defendants.

On October 25, 2010, pro se plaintiff Michael Frederick (“plaintiff”) filed an
amended complaint pursuant to 42 U.S.C. § 1983 alleging, inter alia, that defendants used
excessive force against him in violation of the Eighth Amendment and denied him due process
rights in violation of the Fourteenth Amendment. (Docket # 4). Currently before this Court are
plaintiff’s motions for the appointment of counsel. (Docket ## 17, 20).
It is well-settled that there is no constitutional right to appointed counsel in civil
cases. Although the Court may appoint counsel to assist indigent litigants pursuant to 28 U.S.C.
§ 1915(e), see, e.g., Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22,
23 (2d Cir. 1988), such assignment of counsel 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
cross-examination 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
“every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer
lawyer available for a deserving cause.” Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d
Cir. 1989). Therefore, the Court must first look to the “likelihood of merit” of the underlying
dispute, Hendricks v. Coughlin, 114 F.3d at 392; Cooper v. A. Sargenti Co., Inc., 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).
The Court has reviewed the facts presented herein in light of the factors required
by law and finds, pursuant to the standards promulgated by Hendricks, 114 F.3d at 392, and
Hodge v. Police Officers, 802 F.2d at 58, that the appointment of counsel is not necessary at this
time. As stated above, a plaintiff seeking the appointment of counsel must demonstrate a
likelihood of success on the merits. See id. The plaintiff has failed to do so here. Moreover, the
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legal issues in this case do not appear to be complex, nor does it appear that conflicting evidence
will implicate the need for extensive cross-examination at trial. Finally, plaintiff’s case does not
present any special reasons justifying the assignment of counsel. It is therefore the Decision and
Order of this Court that plaintiff’s motions for the appointment of counsel (Docket ## 17, 20) are
DENIED without prejudice at this time. It is the plaintiff’s responsibility to retain an attorney
or press forward with this lawsuit pro se. 28 U.S.C. § 1654.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
May 17 , 2012

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