Wilkins v. Franczyk et al
DECISION & ORDER denying without prejudice 21 Motion to Appoint Counsel; denying without prejudice 23 Motion to Appoint Counsel; denying without prejudice 16 Motion to Appoint Counsel. It is plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se.; denying 18 Motion for Discovery. Signed by Hon. Marian W. Payson on 5/17/2012. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MELZAR TI-SHAWN WILKINS,
DECISION & ORDER
KELLEY R. HERKY, KAILTIN BAILEY, and
JEFFREY BANAS, et al.,
On July 21, 2011, pro se plaintiff Melzar Ti-Shawn Wilkins (“plaintiff”) filed an
amended complaint pursuant to 42 U.S.C. § 1983 alleging that defendants subjected plaintiff to
selective and malicious prosecution. (Docket # 6). Specifically, plaintiff claims that defendants
failed to perform their duties as forensic serologists, resulting in allegedly “deceptive and
incriminating evidentiary report[s].” (Id. at 3). Currently before this Court are plaintiff’s
motions for the appointment of counsel, as well as a motion for discovery. (Docket ## 16, 18,
I. Motions to Appoint Counsel
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:
Whether the indigent’s claims seem likely to be of
Whether the indigent is able to investigate the crucial facts
concerning his claim;
Whether conflicting evidence implicating the need for
cross-examination will be the major proof presented to the
Whether the legal issues involved are complex; and
Whether there are any special reasons why appointment of
counsel would be more likely to lead to a just
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. Plaintiff has failed to do so here. Further, the legal
issues in this case do not appear to be complex, nor do the facts of the case implicate the need for
cross-examination. 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 ## 16, 21, 23) 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.
II. Motion for Discovery
Plaintiff has moved for production of certain state court documents, such as
copies of the indictment and grand jury minutes from the underlying criminal prosecution.
(Docket # 18). Defendants oppose the motion on the grounds that plaintiff did not seek the
requested discovery from defendants prior to filing the motion and that, in any event, they do not
possess the requested documents. (Docket # 20). In addition, defendants contend that the
requested documents do not appear to be relevant to the instant action, but may be related to
plaintiff’s appeal of his criminal conviction. (Id. at ¶ 8).
Under Rule 37 of the Federal Rules of Civil Procedure, a party filing a motion to
compel must certify that the party conferred in a good faith attempt to obtain the requested
discovery prior to filing the motion. Fed. R. Civ. P. 37(a)(1). Here, not only has plaintiff failed
to satisfy this requirement, but according to defendants, he failed to demand the requested
materials from defendants prior to filing the instant motion. Further, defendants have affirmed
that they do not possess the requested documents. Accordingly, plaintiff’s motion for discovery
Finally, the Court notes that the caption to plaintiff’s motion for discovery names
a new defendant, Erie County District Attorney Frank A. Sedita. (Docket # 18). Plaintiff is
advised that because he did not obtain leave of the Court to amend the complaint, Mr. Sedita is
not a defendant in this action.
For the reasons above, plaintiff’s motion for appointment of counsel (Docket
## 16, 21, 23) are DENIED without prejudice to renewal. Plaintiff’s motion for discovery
(Docket # 18) is DENIED.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
May 17 , 2012
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?