McLean v. Johnson et al
ORDER denying 14 Motion to Appoint Counsel ; denying 17 Motion to Appoint Counsel ; denying 32 Motion to Appoint Counsel. Signed by Hon. Jonathan W. Feldman on 09/19/2017. A copy of this Decision and Order has been sent to pro se plaintiff, Larry McLean, 13-A-0162, SULLIVAN CORRECTIONAL FACILITY, Box 116, Fallsburg, NY 12733-0116. (JKT)
SEP 1 9 2017
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LATANYA JOHNSON et al,
instant action under 42 U.S.C.
§ 1983, alleging that defendants
Corrections Officers at Wende Correctional Facility; Corrections
Sergeant Michaels; and D.
Pearson, Nurse at Wende Correctional
Facility, violated his civil rights by subjecting him to excessive
force and denying him medical services.
See Complaint (Docket#
Pending before the Court are plaintiff's motions to appoint
counsel, dated October 17, 2016, December 22, 2016 and June 26,
See Docket## 14, 17, 32.
appointed counsel because his "imprisonment will greatly limit
his ability to litigate the issues involved" in this case.
Motions to Appoint Counsel (Docket## 17, 32).
For the reasons
that follow, plaintiff's motions are denied without prejudice to
Indigent civil litigants, unlike criminal defendants, do not
have a constitutional right to counsel.
14 F.3d 787, 789
(2d Cir. 1994).
discretion to appoint counsel
See Burgos v. Hopkins,
Nevertheless, a court has the
to represent indigent litigants
pursuant to 28 U.S.C. § 1915(e) when the facts of the case warrant
865 F.2d 22, 23
Co. v. Charles W Sears Real Estate, Inc.,
(2d Cir. 1988); see also, In re Martin-Trigona,
737 F.2d 1254, 1260 (2d Cir. 1984).
The Second Circuit set forth
the factors to be considered in deciding whether or not to assign
counsel in Hodge v. Police Officers:
[Tl he district judge should first determine whether
the indigent' s position seems likely to be of
If the claim meets this threshold
the court should then consider 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 in the case why appointment of couhsel
would be more likely to lead to a just determination.
802 F.2d 58, 61-62 (2d Cir. 1986).
plaintiff's allegations satisfy the initial threshold showing of
See, e.g., Mackey v. DiCaprio, 312 F. Supp. 2d 580, 582
(S.D.N.Y. 2004) (finding that plaintiff's Eighth Amendment claims
that defendants subjected him to cruel and unusual punishment
Sakellardis, No. 02 CV 4373, 2003 WL 22232902, at *1-2 (S.D.N.Y.
reviewing the complaint and considering the nature of the factual
as plaintiff's ability to
counsel is not warranted at this particular time.
"Volunteer lawyer time is a precious commodity" that "should
Cooper v. A.
not be allocated arbitrarily."
F.2d 170, 172 (2d Cir. 1989).
Here, plaintiff's prose complaint
is straightforward in describing the events that gave rise to the
plaintiff's claims do not appear to be unusually complicated, and
the factual circumstances stem from one discrete event.
has alleged that he was beaten by a number of Corrections Officers
while housed at Wende Correctional Facility.
He states that he
was then denied medical treatment for his physical injuries.
Complaint (Docket# 1).
Based on a referral from Judge Siragusa
(Docket# 23), this Court held a Scheduling Conference with all
parties on September 28, 2016.
Plaintiff appeared telephonically
formation of a Scheduling Order.
See Docket# 13.
imprisonment has not appeared to deprive him of the ability to
participate in the discovery process to date, and plaintiff has
submitted well-drafted and logical interrogatories and requests
for document production to the defendants.
litigate the case on his own.
See Docket## 25, 37.
Accordingly, at this juncture at
least, plaintiff appears sufficiently knowledgeable and eqUipped
Singletary, No. 11 Civ. 2658, 2012 WL 70358, at *2 (S.D.N.Y. Jan
(the fact of incarceration,
does not warrrant
appointment of counsel); see also Castro v. Manhattan E. Suite
appointment of counsel where "the case does not present novel or
overly complex legal
and there is no
lacks the ability to present his case") ; Jones v.
2:13-cv-0451 WBS AC P,
2015 WL 5522290, at *3
knowledge of the law, mental illness and disability,
appointment of voluntary civil counsel.") .
do not in
Given the limited
resources available with respect to pro bono counsel, the Court
finds no "special reason" why appointment of counsel now would
more likely lead to a just determination.
See Boomer v. Deperio,
claims that the matter was complex and he had a limited knowledge
of law); Harris v. McGinnis, No. 02 CV 6481, 2003 WL 21108370, at
2003) (denying motion for appointment of
appointment of counsel would increase the likelihood of a just
Should he need, plaintiff may consult with the
discovery process and procedure.
Plaintiff's motions to appoint
counsel are denied.
appointment of counsel (Docket## 14, 17, 32) are denied.
September 19, 2017
Rochester, New York
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