McLean v. Johnson et al

Filing 49

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
LARRY MCLEAN,

DECISION

Plaintiff,

&

ORDER

15-CV-6505

v.

LATANYA JOHNSON et al,
Defendants.

Preliminary Statement

Pro

se

plaintiff

Larry

McLean

instant action under 42 U.S.C.
Latanya

Johnson,

Kevin

("plaintiff")

brings

the

§ 1983, alleging that defendants

Brown,

David

and

Nixon,

Tangya,

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.
1).

See Complaint (Docket#

Pending before the Court are plaintiff's motions to appoint

counsel, dated October 17, 2016, December 22, 2016 and June 26,
2017.

See Docket## 14, 17, 32.

Discussion

In

his

motion,

plaintiff

argues

that

he

needs

Court-

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).

See

For the reasons

that follow, plaintiff's motions are denied without prejudice to
renew.

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
it.

Sears, Roebuck

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
substance.
If the claim meets this threshold
requirement,
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).
In

applying

the

Hodge

factors,

the

Court

finds

that

plaintiff's allegations satisfy the initial threshold showing of
merit.

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
2

satisfied

threshold

showing

of

merit};

see

also

Allen

v.

Sakellardis, No. 02 CV 4373, 2003 WL 22232902, at *1-2 (S.D.N.Y.
2003) (finding

29,

Sept.

correctional

officers

"appears

have

to

that

assaulted

some

chance

allegation

plaintiff's
him

of

while

he

was

restrained

However,

success") .

that

after

reviewing the complaint and considering the nature of the factual
and legal
present

issues

his

involved,

claims,

the

as well

Court

as plaintiff's ability to

concludes

that

appointment

of

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).

Sargenti Co.,

877

Here, plaintiff's prose complaint

is straightforward in describing the events that gave rise to the
alleged

violations.

legal

The

circumstances

surrounding

plaintiff's claims do not appear to be unusually complicated, and
the factual circumstances stem from one discrete event.

Plaintiff

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).

See

Based on a referral from Judge Siragusa

(Docket# 23), this Court held a Scheduling Conference with all
parties on September 28, 2016.
at

the

conference

and was

Plaintiff appeared telephonically

articulate

formation of a Scheduling Order.
3

in contributing

See Docket# 13.

to

the

Plaintiff's

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.
Plaintiff

provides

no

specific

litigate the case on his own.

reasons

See Docket## 25, 37.
why

he

is

unable

to

Accordingly, at this juncture at

least, plaintiff appears sufficiently knowledgeable and eqUipped
to

understand

and

handle

the

See

litigation.

Collins

v.

Singletary, No. 11 Civ. 2658, 2012 WL 70358, at *2 (S.D.N.Y. Jan
9,

2012)

(the fact of incarceration,

alone,

does not warrrant

appointment of counsel); see also Castro v. Manhattan E. Suite
Hotel,

279

F.

Supp.

2d

356,

358

(S.D.N.Y.

(denying

2003)

appointment of counsel where "the case does not present novel or
overly complex legal
[plaintiff]

No.

(E.D.

Sept.

prisoners,

and there is no

indication that

lacks the ability to present his case") ; Jones v.

Kupperinger,
Cal.

issues,

such

2:13-cv-0451 WBS AC P,
17,
as

a

2015)

2015 WL 5522290, at *3

("Circumstances

deficient

general

common

education,

knowledge of the law, mental illness and disability,
themselves

establish

exceptional

circumstances

appointment of voluntary civil counsel.") .

to

most

lack

of

do not in
warranting

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.
4

See Boomer v. Deperio,

No.

03

CV

6348L,

2005) (denying

2005

motion

WL

to

15451,

appoint

at

*1-2

counsel

(W.D.N.Y.
despite

Jan.

3,

plaintiff's

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
*2

(S.D.N.Y.

counsel

May 14,

2003) (denying motion for appointment of

plaintiff

where

"offered

no

special

reason

why

appointment of counsel would increase the likelihood of a just
determination").

Should he need, plaintiff may consult with the

Western District's

pro

se

office

discovery process and procedure.

attorneys

for

questions

on

Plaintiff's motions to appoint

counsel are denied.

Conclusion

For

the

reasons

stated

above,

plaintiff's

motions

appointment of counsel (Docket## 14, 17, 32) are denied.
SO ORDERED.

W. FELDMAN
Magistrate Judge

Dated:

September 19, 2017
Rochester, New York

5

for