Buckingham v. Lewis General Tires, Inc.
DECISION & ORDER denying without prejudice 145 Motion to Appoint Counsel. It is the plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se. Signed by Hon. Marian W. Payson on 12/7/2017. Copy of this Decision & Order sent by First Class Mail to plaintiff Walter Buckingham on 12/7/2017 to his address of record. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION & ORDER
LEWIS GENERAL TIRES, INC.,
On May 22, 2013, pro se plaintiff Walter Buckingham (“plaintiff”) commenced
this action against the defendant pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq. (Docket # 1). Currently pending before this Court is plaintiff’s fourth request for
appointment of counsel. (Docket # 145).
It is well-settled that there is no constitutional right to appointed counsel in civil
cases. Although the Court may appoint counsel to assist indigent litigants pursuant to 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), such assignment of counsel is clearly within the judge’s discretion. In re
Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). The factors to be considered in deciding whether
or not to assign counsel include the following:
Whether the indigent’s claims seem likely to be of
Whether the indigent is able to investigate the crucial facts
concerning his claim;
Whether conflicting evidence implicating the need for
cross-examination will be the major proof presented to the
Whether the legal issues involved are complex; and
Whether there are any special reasons why appointment of
counsel would be more likely to lead to a just
Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Hodge v. Police Officers, 802
F.2d 58 (2d Cir. 1986).
The Court must consider the issue of appointment carefully, of course, 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). Therefore, the Court must first look to the “likelihood of merit” of the underlying
dispute, Hendricks v. Coughlin, 114 F.3d at 392; Cooper v. A. Sargenti Co., Inc., 877 F.2d at
174, and “even 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 [her] 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).
The Court has reviewed the facts presented herein in light of the factors required
by law and finds, pursuant to the standards promulgated by Hendricks, 114 F.3d at 392, and
Hodge v. Police Officers, 802 F.2d at 58, that the appointment of counsel is not necessary at this
time. As stated above, a plaintiff seeking the appointment of counsel must demonstrate a
likelihood of success on the merits. See id. Plaintiff has not done so at this stage. Moreover, the
legal issues in this case do not appear to be complex, nor does it appear that conflicting evidence
will implicate the need for extensive cross-examination at trial. Finally, plaintiff’s case does not
present any special reasons justifying the assignment of counsel. Although he has alleged that he
suffers from depression, hypertension and stress that “disable[s] [him] [from] function[ing]
normally,” he has not demonstrated how those conditions prevent or impede him from
prosecuting his case. (See Docket # 145). Indeed, he has submitted numerous motions and
filings that reflect his ability to represent himself in this matter. On this record, plaintiff’s
request for the appointment of counsel (Docket # 145) is DENIED without prejudice at this
time. It is the plaintiff’s responsibility to retain an attorney or press forward with this lawsuit
pro se. 28 U.S.C. § 1654.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
December 7, 2017
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