Gauze v. Bradt et al

Filing 55

DECISION & ORDER Plaintiff's request for appointment of counsel 39 is again denied without prejudice. It is plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se; plaintiff's request for a n order compelling interrogatory responses from Michael Boczar 39 is denied without prejudice at this time; plaintiff's request to be compensated $3,000 in attorney's fees 39 is denied. Signed by Hon. Marian W. Payson on 6/17/2016. Copy of Decision & Order sent by First Class Mail to plaintiff Dwayne Gauze on 6/17/2016. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
DWAYNE GAUZE,
DECISION & ORDER
Plaintiff,
13-CV-6639G
v.
OFFICER M. BOZAR, et al.,
Defendants.
_______________________________________

On December 2, 2013, pro se plaintiff Dwayne Gauze (“plaintiff”) filed a
complaint in the above-captioned matter asserting constitutional violations pursuant to 42 U.S.C.
§ 1983. (Docket ## 1, 5). Plaintiff’s claims arise out of his incarceration at Attica Correctional
Facility. (Id.). Currently pending before this Court is plaintiff’s motion for appointment of
counsel, an order compelling interrogatory responses from an unserved defendant, Officer
Michael Boczar, and $3,000.00 in attorney’s fees.1 (Docket # 39). Defendants have opposed the
motion. (Docket # 45). Plaintiff’s motion for appointment of counsel is his fourth application
for assignment of pro bono counsel, the previous three having been denied by this Court by
Decision and Order dated January 29, 2016. (Docket ## 31, 33, 43, 44).
With respect to plaintiff’s request for appointment of counsel, 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

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In his motion, plaintiff also objects to defendants’ response to his previous motion seeing similar relief.
(Docket # 39 at 4 ¶ 1 (referring to Docket ## 33, 37)). The Court has already resolved that motion, rendering
plaintiff’s objections moot. (Docket # 44).

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:
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 claim;

3.

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

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).
The Court must consider carefully the issue of appointment of counsel 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 his 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).

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The Court has reviewed the facts presented herein in light of the factors required
by law and finds, as it has previously, 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. The fact that plaintiff is
dissatisfied with defendants’ responses to his discovery requests or motions is not, without merit,
a justification for appointment of counsel. (See Docket # 39 at 2). On this record, plaintiff’s
request for appointment of counsel (Docket # 39) is again DENIED without prejudice. It is the
plaintiff’s responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C.
§ 1654.
With respect to plaintiff’s request for an order compelling interrogatory responses
from Michael Boczar (Docket # 39), that request is DENIED without prejudice at this time
because Boczar is not a party in this suit and defendants have already provided all information in
their possession regarding Boczar’s last known address (Docket ## 44, 45). Finally, plaintiff’s
request to be compensated $3,000 in attorney’s fees (Docket # 39) is DENIED.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
June 17, 2016

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