Ryan v. Moss et al
Filing
32
DECISION & ORDER denying without prejudice 21 Motion to Appoint Counsel. It is plaintiff's responsibility to retain an attorney or press forward with this action pro se. Signed by Hon. Marian W. Payson on 10/2/2012. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JAMES R. RYAN,
DECISION & ORDER
Plaintiff,
11-CV-6015P
v.
CHRISTOPHER MOSS, Chemung County
Sheriff, SCOTT WHEELER, Sargent and
RICHARD L. MATHEWS, Deputy,
each in their individual and official capacities,
Defendants.
Pro se plaintiff James R. Ryan (“Ryan”), who is incarcerated in the Chemung
County Jail, has filed this lawsuit against defendants pursuant to 42 U.S.C. § 1983, alleging that
defendants have violated his constitutional rights in connection with an illegal search of his
home. (Docket # 1). Currently before this Court is Ryan’s motion for the appointment of
counsel. (Docket ## 11, 14).
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).
As a threshold matter, the Court notes that Ryan has been given leave to proceed
in forma pauperis. (Docket # 3). The Court is unable to ascertain, however, at this early stage of
the litigation, whether his claims likely have merit. In any event, Ryan has failed to demonstrate
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that his case is complex or that he will be unable to adequately litigate his claims without
assistance of counsel. Although plaintiff complains that he will be unable to take depositions of
the defendants, he has not shown that other forms of discovery would be inadequate or
ineffective. In addition, the Court also notes that there is a limited number of local attorneys
available to handle cases on a pro bono basis. Cooper v. A. Sargenti Co., Inc., 877 F.2d at 172
(“every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer
lawyer available for a deserving cause.”). Based on this review, plaintiff’s motion for
appointment of counsel (Docket # 21) is DENIED without prejudice at this time. It is plaintiff’s
responsibility, therefore, to retain an attorney or press forward with this action pro se.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
October 2 , 2012
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