Montalvo v. Flamy et al
Filing
49
DECISION & ORDER Plaintiff's request for the appointment of counsel 41 47 is granted. The Court hereby directs the Pro Se Clerk to identify a Spanish-speaking attorney who is willing to represent Montalvo with the litigation of this m atter and to advise this Court when pro bono counsel has been identified. Signed by Hon. Marian W. Payson on 7/22/2016. Copy of Decision & Order sent by First Class Mail to plaintiff Misael Montalvo on 7/22/2016. (KAH) -CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
MISAEL MONTALVO,
DECISION & ORDER
Plaintiff,
14-CV-6251W
v.
COMM. OF CORRECTION F. LAMY, et al.,
Defendants.
_______________________________________
On May 15, 2014, pro se plaintiff Misael Montalvo (“plaintiff” or “Montalvo”)
commenced this action against the defendants pursuant to 42 U.S.C. § 1983 alleging
constitutional violations in connection with his incarceration at Erie County Holding Center.
(Docket # 1). Currently pending before this Court are plaintiff’s motions for appointment of
counsel. (Docket ## 41, 47).
Montalvo requests assistance of counsel principally because his “[first] language
is Spanish.” (Docket # 41). Although he has filed his complaint and several motions seeking
appointment of counsel (Docket ## 1, 17, 28, 41, 47), Montalvo maintains that he received
assistance from other inmates in the facilities in which he has been housed to draft these
documents. (Docket # 44-3 at ¶¶ 3, 5-6). Indeed, a review of his submissions shows that his
filings appear to contain different handwritings. (Docket ## 1, 28, 41, 43, 41, 44, 47).
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:
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).
At the outset, the Court notes that several of Montalvo’s claims have survived
defendants’ pre-answer motion to dismiss. (Docket # 33). Moreover, with respect to Montalvo’s
claim that he requires assistance due to his lack of proficiency in the English language, I note
that Montalvo has been provided a Spanish-speaking interpreter to translate court proceedings in
an ongoing federal criminal proceeding. (See 11-CR-0366RJA, in particular Docket # 231).
Further, the record in this matter reveals that Montalvo has a language barrier that
is likely to impede his effective prosecution of this case. This Court received a letter dated
February 3, 2016, which enclosed, among other filings, plaintiff’s opposition to defendants’
motion to dismiss, dated January 25, 2016. (Docket # 44-1). According to the docket, the
deadline for Montalvo’s opposition was September 1, 2015 (Docket # 29), and the district court
issued a decision and order granting in part and denying in part the motion to dismiss on
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September 30, 2015 (Docket # 33). Montalvo’s belated submission of his opposition, well after
the deadline and well after the court had already ruled on the motion, certainly suggests the
possibility that Montalvo’s language barrier impaired his ability to comprehend the meaning and
significance of the district court’s decision and order on the motion to dismiss. Additionally, this
Court conducted a conference with Montalvo on March 23, 2016, during which the services of
an interpreter were used to communicate with Montalvo. (Docket # 46). Finally, one of
Montalvo’s claims in this action involves his assertion that he was denied due process because he
was not provided an interpreter during a prison disciplinary hearing. (Docket ## 1, 33).
On this record, I find that Montalvo’s language barrier is likely to impede
substantially his ability to effectively litigate this action and that the interests of justice will be
served by the appointment of counsel. See Vasquez v. Klie, 2010 WL 3219300, *2 (S.D.N.Y.
2010) (appointing Spanish-speaking counsel where “[plaintiff’s] ability to present his case is
limited in that he cannot speak English and has required the aid of a Spanish-language translator
throughout the prosecution of this action”); Bonilla v. Future Sales, Inc., 378 F. Supp. 2d 170,
170 (E.D.N.Y. 2005) (appointing Spanish-speaking counsel “[b]ased on the pro se plaintiff’s
great difficulty in reading, writing and understanding the English language”); see also Valle v.
Gebler, 2005 WL 589819, *1 (W.D.N.Y.) (noting that the court had previously appointed pro
bono counsel; “[a]lthough plaintiff’s written submissions to the [c]ourt have been in
comprehensible English, another inmate submitted an affidavit indicating that he had assisted
plaintiff with his writing and legal research because plaintiff ‘has no teachings in writing English
and has a complicated time reading or understand [sic] our American language’”), reconsidered
on other grounds, 2005 WL 3579059 (W.D.N.Y. 2005). Accordingly, plaintiff’s request for the
appointment of counsel (Docket ## 41, 47) is GRANTED. The Court hereby directs the Pro Se
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Clerk to identify a Spanish-speaking attorney who is willing to represent Montalvo with the
litigation of this matter and to advise this Court when pro bono counsel has been identified.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
July 22, 2016
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