Smith v. Fischer et al

Filing 47

DECISION AND ORDER. Plaintiff's Motion to Appoint Counsel 46 is DENIED WITHOUT PREJUDICE. SO ORDERED. A copy of this Order and NEF have been mailed to the pro se Plaintiff. Signed by Hon. Frank P. Geraci, Jr. on 1/10/2017. (AFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEREMIE SMITH,
Plaintiff,
Case # 13-CV-6127-FPG
v.
DECISION AND ORDER
BRIAN S. FISCHER et al.,
Defendants.

On September 19, 2016, pro se Plaintiff Jeremie Smith (“Plaintiff”) filed a Motion to
Appoint Counsel. ECF No. 46. Plaintiff asserts that the Court should appoint him counsel in
this matter because he has been unable to retain a lawyer on his own and because he has “little to
no legal ability.” Id. at 1.
There is no constitutional right to appointed counsel in civil cases. Under 28 U.S.C.
§ 1915(e), the Court may appoint counsel to assist indigent litigants. See, e.g., Sears, Roebuck &
Co. v. Charles Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). The assignment of
counsel in civil cases is within the trial Court’s discretion. In re Martin-Trigona, 737 F.2d 1254
(2d Cir. 1984). The Court must consider the issue of appointment carefully, because “every
assignment of a volunteer lawyer deprives society of a volunteer lawyer available for a deserving
cause.” Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). In determining whether to
assign counsel, the Court considers several factors, including whether the indigent’s claims seem
likely to be of substance; whether the indigent is able to investigate the facts concerning his
claim; whether the legal issues are complex; and whether there are special reasons why the
appointment of counsel would be more likely to lead to a just determination. See Hendricks v.
Coughlin, 114 F.3 390, 392 (2d Cir. 1997); Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986).
After considering these factors, the Court finds that the appointment of counsel is not
warranted. At this juncture, it is difficult to tell whether Plaintiff’s claims are likely to be of

substance. Plaintiff has submitted roughly 250 pages of letters, affidavits, and exhibits to the
Court, and throughout these papers he appears to be articulate and able to adequately present his
own claims. Additionally, there are no special reasons that would favor the appointment of
counsel at this time. Accordingly, Plaintiff’s Motion to Apppoint Counsel (ECF No. 46) is
DENIED WITHOUT PREJUDICE. It is Plaintiff’s responsibility to either retain counsel or to
continue with this action pro se.

IT IS SO ORDERED.
Dated: Rochester, New York
January 10, 2017
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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