Reed et al v. Cushman et al
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)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHARLES REED, SR. and RICHARD REED,
DECISION & ORDER
12-CV - 6655
KURT CUSHMAN, Div. of Parole et al.,
Prose plaintiffs Charles Reed, Sr. and Richard Reed bring the
instant action under 42 U.S.C.
1983, and 1988,
that their civil rights were violated in connection with a search
of their residence conducted by defendant P.O.
See Complaint (Docket# 1); see also Decision and
Order (Docket# 38).
Pending before the Court are two motions made
October 6, 2016.
Cashman and other
dated September 15,
Docket## 41, 44.
appointed counsel because they had been receiving assistance from a
friend who is a paralegal but has recently become unable to assist
Plaintiffs state that they are without knowledge
of how to litigate this case.
See Docket# 44 at 2.
For the reasons
motions are denied without prejudice to
Indigent civil litigants,
unlike criminal defendants,
have a constitutional right to counsel.
See Burgos v. Hopkins, 14
pursuant to 28 U.S.C. § 1915(e) when the facts of the case warrant
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
investigate the crucial facts,
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.
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
reviewed the record and all filings before the Court,
that appointment of counsel is not warranted at this time.
Hodge, 802 F.2d at 61-62.
"Volunteer lawyer time is a precious commodity" that "should
not be allocated arbitrarily."
Cooper v. A. Sargenti Co., 877 F.2d
pro se complaint is
straightforward as to the nature of the events from which they seek
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,
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.
See Docket ## 19, 36,
understand and handle the litigation.
See Castro v. Manhattan E.
appointment of counsel where "the case does not present novel or
the ability to present his case") .
limited resources available with respect to pro bona counsel,
Court finds no "special reason" why appointment of counsel now would
be more likely to lead to a
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.
"offered no special
reason why appointment of counsel
would increase the likelihood of a just determination")
motions to appoint counsel are denied.
Plaintiffs' motions for appointment of counsel
44) are denied with leave to renew.
ed States Magistrate Judge
September 20, 2017
Rochester, New York
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