Juarbe v. Sheahan et al

Filing 27

DECISION AND ORDER: Defendants' Motion to Vacate the Clerk's Entry of Default (ECF No. 17) is GRANTED, and the Clerk's Entry of Default (ECF No. 16) is hereby VACATED. Plaintiff's Motion for Default Judgment (ECF No. 20) is DENI ED, as is Plaintiff's Motion to Appoint Counsel (ECF No. 23). SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 8/18/17. A copy of this NEF and the Decision and Order have been mailed to the pro se Plaintiff. (SCE)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOSE JUARBE,
Plaintiff,
Case # 16-CV-6048-FPG
v.
DECISION AND ORDER
SHEAHAN and HUGHES,
Defendants.

On September 19, 2016, pro se Plaintiff Jose Juarbe requested that the Clerk of Court enter
default against Defendants Sheahan pursuant to Fed. R. Civ. P. 55(a). ECF No. 15. The Clerk of
Court entered the requested default that same day. ECF No. 16. Shortly thereafter, Defendants
moved to vacate the Clerk’s Entry of Default (ECF No. 17), and in response, Plaintiff moved for
default judgment pursuant to Fed. R. Civ. P. 55(b). ECF No. 20.

In addition, Plaintiff has

requested the appointment of counsel. ECF No. 23.
In moving to vacate the Clerk’s entry of default, Defendants argue that under a Standing
Order of the Western District of New York, they have 60 days from the date Defendants sign the
acknowledgement of service to answer the Complaint. Defendants are correct. Here, Defendants
signed the acknowledgements on August 9, 2016, so they had 60 days thereafter to file their
answers. However, the Clerk applied an incorrect date to calculate the time period for Defendants
to answer, and as a result, entered default on September 19, 2016 – although Defendants actually
had until October 10, 2016 to file their answers. As a result, the entry of default by the Clerk of
Court was erroneous, Defendants’ Motion to Vacate the Clerk’s Entry of Default (ECF No. 17) is
GRANTED, and the Clerk’s Entry of Default (ECF No. 16) is hereby VACATED.
Since no default occurred by Defendants, and with the Clerk’s Entry of Default now
vacated, Plaintiff’s Motion for Default Judgment (ECF No. 20) is DENIED.

Regarding Plaintiff’s Motion to Appoint Counsel (ECF No. 23), there is no constitutional
right to appointed counsel in civil cases. Under 28 U.S.C. § 1915(e), the Court may appoint
counsel to assist indigent litigants. See, e.g., Sears, Roebuck & Co. v. Charles Sears Real Estate,
Inc., 865 F.2d 22, 23 (2d Cir. 1988). The assignment of counsel in civil cases is within the trial
Court’s discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). The Court must consider
the issue of appointment carefully, because “every assignment of a volunteer lawyer deprives
society of a volunteer lawyer available for a deserving cause.” Cooper v. A. Sargenti Co., 877
F.2d 170, 172 (2d Cir. 1989). In determining whether to assign counsel, the Court considers
several factors, including whether the indigent’s claims seem likely to be of substance; whether
the indigent is able to investigate the facts concerning his claim; whether the legal issues are
complex; and whether there are special reasons why the appointment of counsel would be more
likely to lead to a just determination. See Hendricks v. Coughlin, 114 F.3 390, 392 (2d Cir. 1997);
Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986).
After considering these factors, the Court finds that the appointment of counsel is not
warranted in this case. The claims presented in this case are not complex, and from reading the
Plainitff’s prior submissions, he appears to be articulate and has demonstrated the ability to
adequately present his own claims. In addition, there are no special reasons that would favor the
appointment of counsel. Plaintiff’s Motion to Appoint Counsel (ECF No. 23) is therefore
DENIED. It remains Plaintiff’s responsibility to either retain counsel, or to press forward with
this action pro se.
CONCLUSION
For the reasons stated, Defendants’ Motion to Vacate the Clerk’s Entry of Default (ECF
No. 17) is GRANTED, and the Clerk’s Entry of Default (ECF No. 16) is hereby VACATED.

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Plaintiff’s Motion for Default Judgment (ECF No. 20) is DENIED, as is Plaintiff’s Motion to
Appoint Counsel (ECF No. 23).
By separate Order, this case will be referred to a United States Magistrate Judge for pretrial
proceedings.
IT IS SO ORDERED.
DATED:

August 18, 2017
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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