Anderson v. Serena et al

Filing 134

ORDER denying 50 Motion to Appoint Counsel ; denying 61 Motion for Appointment of Counsel. Signed by Hon. Jonathan W. Feldman on 09/07/2016. A copy of this Order has been sent to pro se plaintiff. (JKT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DERRICK ANDERSON,
Plaintiff,

DECISION AND ORDER
12-CV-6039

v.
NURSE SERENA BUIE, et al,
Defendants.

Preliminary Statement

Currently
Anderson's

pending

before

(hereinafter

the

"Anderson"

fifth motions to appoint counsel.
previous

occasions

this

Court

2012.

or

are

pro

se

"plaintiff")

(Docket ## 50,

reviewed

request for appointed counsel,
November 8,

Court

and

Derrick

fourth
61) .

and

On two

denied plaintiff's

first on October 22 and again on

(Docket # 20,

22).

In addition,

Chief Judge

Geraci denied a similar request to appoint counsel on September
23,

2014.

plaintiff
ability

(Docket # 42) .
"appears
express

to

be

his

All

of

these decisions

articulate

own

claims

and

has

found that

demonstrated

adequately,"

and

"plaintiff's claims are [not] particularly complex."

an

that

See Docket

# 20.
Anderson's

instant

Geraci's

December

majority

of

Order

23,

2015

defendants'

(Docket

# 44) .

motions

On

come

Decision

motion

to

and

dismiss.

February 4,

Judge Geraci's Decision and Order,

on

2016,

the

heels

Order

of

denying

Judge
the

See Decision and
following

entry of

this Court held a scheduling

conference

with

conference,
Pursuant

to

a

the

parties.

scheduling

the

At

order

scheduling

conclusion

issued. 1

was

order,

the

the

of

(Docket

parties

are

#

the
59).

currently

engaged in discovery.
Discussion

The

Court

defendants'

has

motions

reviewed
to

Judge

dismiss,

Geraci's
well

as

Order

plaintiff

as

denying
and

defendants' motion papers on the instant motions. Based on that
review, I find that plaintiff's latest motion for counsel should
be denied without prejudice.
I

have

considered multiple

factors

in whether or not

to

assign counsel to plaintif f 2 and I remain convinced that at this
juncture
his

in litigation,

claims

pro

se.

Anderson has
Based

on

the· ability to prosecute

the

conducted with plaintiff on February 4,

scheduling
2016,

I

conference

I

found plaintiff

'Plaintiff filed one motion for appointment of counsel before the
scheduling conference (Docket # 50 filed January 11, 2016) and
another after the scheduling conference (Docket # 61 filed
February 11, 2016).
2

The factors to be considered in deciding whether or not to
assign counsel include ( 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 claims; (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.
See Order
Denying Motion to Appoint Counsel (Docket # 20) at 1-2 (citing
Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997)).
2

capable of explaining his

legal claims and discovery concerns.

This finding is consistent with plaintiff's previous filings in
case,

this

including

defendants'

motion to

since filing his
has

engaged

in

his

comprehensive

dismiss.

See Docket

instant motions
ongoing

response

serving

requests for admissions and interrogatories,

and

the

In the time

#3 5 .

to appoint counsel,

discovery,

to

plaintiff

responding

to

and filing motions

to compel discovery when he has not received the documents or
responses he seeks.

See Docket## 78,

108,

109,

111,

115.

new

facts

or

reconsider

114,

Moreover,

deficiencies

its

prior

that

82,

84,

94,

101-05,

plaintiff has asserted no

cause

determination

79,

this
that

Court

to

plaintiff

alter
is

or

fully

capable of proceeding pro se.

Conclusion

For the above reasons as well as those stated previously by
the Court

(Docket## 20,

22,

42),

plaintiff's motion to appoint

counsel is denied without prejudice.
SO ORDERED.

W. FELDMAN
Magistrate Judge
Dated:

September 7, 2016
Rochester, NY
3