Spikes Bell v. Continental School of Beauty et al

Filing 12

ORDER denying plaintiff's 9 Motion to Appoint Counsel. Signed by Hon. David G. Larimer on 11/6/13. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DAPHNE SPIKES BELL,
Plaintiff,
ORDER
-vs-

13-CV-6244L

CONTINENTAL SCHOOL OF BEAUTY et al.,
Defendants.

Plaintiff Daphne Spikes Bell, appearing pro se, has filed a motion for appointment of
counsel. (Dkt. #9). There is no constitutional right to appointed counsel in civil cases. Although
the Court may appoint counsel to assist indigent litigants under 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), courts have
broad discretion in determining whether such assignments are warranted. In re Martin-Trigona, 737
F.2d 1254 (2d Cir. 1984).
Such motions are not to be granted routinely, 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). In exercising its
discretion, then, the court must carefully consider the relevant factors, which 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 or her
claim;

3.

Whether conflicting evidence implicating the need for cross-examination will be the
major proof presented to the factfinder;

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.

Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Hodge v. Police Officers, 802
F.2d 58 (2d Cir. 1986).
Additionally, the Court must consider the “likelihood of merit” of the underlying dispute.
Hendricks, 114 F.3d at 392; Cooper, 877 F.2d at 174. “[E]ven 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 [the plaintiff’s] 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). See also Ferrelli v. River
Manor Health Care Ctr., 323 F.3d 196, 204-205 (2d Cir. 2003) (appointing counsel for plaintiff
alleging discrimination under Title VII would have been “inappropriate” because the plaintiff’s case
was based largely on “bald assertions” and was not “likely to be of substance”).
The Court has reviewed the facts presented herein in light of the factors required by law.
Plaintiff has demonstrated her ability to pursue and present her claims. Plaintiff has also failed to
demonstrate that she is likely to succeed on the merits of the complaint. See Hendricks, 114 F.3d
at 392. In short, the proceedings thus far do not indicate a need for appointment of counsel at this
time.
CONCLUSION
Plaintiff’s motion for appointment of counsel (Dkt. #9) is denied without prejudice. It is
plaintiff’s responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C.
§1654; 42 U.S.C. §2000e-5(f)(1).
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
November 6, 2013.

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