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)

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?