Reed et al v. Cushman et al

Filing 67

ORDER denying 41 Motion to Appoint Counsel ; denying 44 Motion to Appoint Counsel. Signed by Hon. Jonathan W. Feldman on 09/20/2017. A copy of this Order has been mailed to pro se plaintiffs Charles Reed, Sr. and Richard Reed at 532 Upper Falls Blvd., Apt. 23, Rochester, NY 14605. (JKT)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK CHARLES REED, SR. and RICHARD REED, Plaintiffs, DECISION & ORDER 12-CV - 6655 v. KURT CUSHMAN, Div. of Parole et al., Defendants. Preliminary Statement Prose plaintiffs Charles Reed, Sr. and Richard Reed bring the instant action under 42 U.S.C. §§ 1981, 1983, and 1988, alleging that their civil rights were violated in connection with a search of their residence conducted by defendant P.O. named defendants. See Complaint (Docket# 1); see also Decision and Order (Docket# 38). by plaintiffs Pending before the Court are two motions made to appoint October 6, 2016. Cashman and other counsel, dated September 15, 2016 and Docket## 41, 44. Discussion In their motion, plaintiffs argue that they need Court- appointed counsel because they had been receiving assistance from a friend who is a paralegal but has recently become unable to assist plaintiffs further. Plaintiffs state that they are without knowledge of how to litigate this case. See Docket# 44 at 2. For the reasons that follow, plaintiffs' motions are denied without prejudice to renew. Indigent civil litigants, unlike criminal defendants, have a constitutional right to counsel. F.3d 787, discretion 789 to (2d Cir. appoint 1994). counsel See Burgos v. Hopkins, 14 Nevertheless, to do not represent a court indigent has the litigants pursuant to 28 U.S.C. § 1915(e) when the facts of the case warrant it. Sears, Roebuck & Co. v. Charles W Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988); see also, In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The Second Circuit set forth the factors to be considered in deciding whether or not to assign counsel in Hodge v. Police Officers: [T]he district judge should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider the indigent' s ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues, and any special reason in the case why appointment of counsel would be more likely to lead to a just determination. 802 F.2d 58, 61-62 (2d Cir. 1986). In applying the Hodge factors, the Court finds that plaintiffs' allegations satisfy the initial threshold showing of merit. Judge Telesca recently denied summary judgment to all defendants, finding inconsistencies between statement and documentary evidence on the record that gave "the Court pause." # 3 8) . See Decision and Order (Docket Judge Telesca noted that the case presented an important 2 issue of constitutional magnitude. Id. at 8. However, reviewed the record and all filings before the Court, I having conclude that appointment of counsel is not warranted at this time. See Hodge, 802 F.2d at 61-62. "Volunteer lawyer time is a precious commodity" that "should not be allocated arbitrarily." 170, 172 (2d Cir. 1989). Cooper v. A. Sargenti Co., 877 F.2d Here, plaintiffs' pro se complaint is straightforward as to the nature of the events from which they seek relief. The legal circumstances surrounding plaintiffs' claims are not unusually complicated, and most of the controversy in this case has come down to a credibility determination between plaintiffs and the officers involved. The case centers around an unwarranted entry and search of plaintiffs' home by defendants - parole officers and See Complaint (Docket# 1); Rochester Police Department officers. see also Decision and Order (Docket# 38). The parties have engaged in considerable discovery, and defendants have twice filed motions for summary judgment. See Docket ## 16, 32. A third motion for summary judgment was recently filed by defendants and is currently under review by Judge Telesca. See Docket# 64. In all instances, plaintiffs have followed the court's Orders and have submitted welldrafted, clear and coherent responses. Indeed, they dispositive plaintiffs have competently motions. appear See Docket ## 19, 36, navigated Accordingly, sufficiently at this this knowledgeable understand and handle the litigation. 3 case through juncture and at 65. two least, equipped to See Castro v. Manhattan E. Suite Hotel, 279 F.Supp.2d 356, 358 (S.D.N.Y. 2003) (denying appointment of counsel where "the case does not present novel or overly complex [plaintiff] legal lacks issues, and there is no indication the ability to present his case") . that Given the limited resources available with respect to pro bona counsel, the Court finds no "special reason" why appointment of counsel now would be more likely to lead to a Deperio, No. 2005) just determination. See Boomer v. 03 CV 6348L, 2005 WL 15451, at *1-2 (W.D.N.Y. Jan. 3, (denying motion to appoint counsel despite plaintiff's claims that the matter was complex and he had a limited knowledge of law); Harris V. McGinnis, No. 02 CV 6481, 2003 WL 21108370, at *2 (S.D.N.Y. May 14, 2003) plaintiff (denying motion "offered no special for appointment of counsel where reason why appointment of counsel would increase the likelihood of a just determination") Plaintiffs' motions to appoint counsel are denied. Conclusion Plaintiffs' motions for appointment of counsel (Docket# 41, 44) are denied with leave to renew. SO ORDERED. ed States Magistrate Judge Dated: September 20, 2017 Rochester, New York 4

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