Cox v. Smith et al

Filing 39

DECISION AND ORDER. Plaintiff's Motion to Appoint Counsel 38 is DENIED. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 2/2/2017. A Copy of this Order and NEF have been mailed to the pro se Plaintiff. (AFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JAMAL COX,
Plaintiff,
Case # 13-CV-6497-FPG
v.
DECISION AND ORDER
T. SMITH et al.,
Defendants.

On January 27, 2017, pro se Plaintiff Jamal Cox (“Plaintiff”) filed a Motion to Appoint
Counsel. ECF No. 38. Plaintiff asserts that the Court should appoint him counsel because he
cannot afford to investigate the facts of his case and because “this case requires [him] to know
very complex legal issues that [he] is not able to handle []or understand completely.” 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; 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 why appointment of counsel would be more likely to lead to a just

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determination. See Hendricks v. Coughlin, 114 F.3d 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. The claims presented in this case revolve around a single use of force incident and
are not complex. Plaintiff’s submissions are articulate and it appears he is able to adequately
present his own claims.

Additionally, there are no special reasons that would favor the

appointment of counsel.
Accordingly, Plaintiff’s Motion to Apppoint Counsel (ECF No. 38) is DENIED. It is
Plaintiff’s responsibility to either retain counsel or continue with this action pro se.

IT IS SO ORDERED.
Dated: February 2, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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