Lashway v. Fisher et al

Filing 40

DECISION & ORDER granting 35 Motion to Appoint Counsel. The Court hereby directs the Pro Se Clerk to identify an attorney who is willing to represent Lashway with the litigation of this matter and to advise this Court when pro bono counsel has been identified. Signed by Hon. Marian W. Payson on 5/1/2015. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

STEVEN A. LASHWAY
DECISION & ORDER
Plaintiff,
14-CV-6563CJS
v.
BRIAN S. FISHER et al.,
Defendants.

On September 25, 2014, Stephen A. Lashway (“Lashway”) commenced this
action pro se against Brian S. Fisher, the Commissioner of the New York State Department of
Corrections and Community Supervision (“DOCCS”), various individual DOCCS employees or
DOCCS inmates, Ann Marie T. Sullivan, the Commissioner for the New York State Office of
Mental Health and various individual employees of the Central New York Psychiatric Center
(collectively “defendants”) alleging constitutional and statutory violations arising out of his
incarceration at the Wende Correctional Facility in Alden, New York and the Southport
Correctional Facility in Pine City, New York, and his detention in the Central New York
Psychiatric Center located in Marcy, New York. (Docket # 1). Currently pending before this
Court is Lashway’s motion for appointment of counsel. (Docket # 35). In the motion, Lashway
states that he is currently detained in the Central New York Psychiatric Center, which does not
have a law library. (Id. at ¶ 3(a)). Additionally, Lashway states that he does not have access to
the internet or to any legal materials. (Id.). By letter dated April 30, 2015, counsel for the

defendants confirmed that Central New York Psychiatric Center does not have a law library and
that, accordingly, it may be appropriate to appoint counsel in this case.
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).
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). Having reviewed the facts presented herein in light of the factors required by law and
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pursuant to the standards promulgated by Hendricks, 114 F.3d at 392, and Hodge v. Police
Officers, 802 F.2d at 58, I conclude that Lashway’s inability to access any legal materials
constitutes sufficient circumstances to justify appointment of counsel to assist Lashway with the
prosecution of his claims.
For these reasons, Lashway’s request for appointment of counsel (Docket # 35) is
GRANTED. The Court hereby directs the Pro Se Clerk to identify an attorney who is willing to
represent Lashway 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
May 1, 2015

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