McFadden v. Annucci et al

Filing 145

DECISION & ORDER McFadden's request for the appointment of counsel 135 is denied without prejudice at this time. It is McFadden's responsibility to retain an attorney or continue with this lawsuit pro se. 28 U.S.C. § 1654. Signed by Hon. Marian W. Payson on 2/4/2022. A copy of this Decision & Order sent by First Class Mail to plaintiff Reginald Ghaffaar McFadden on 2/4/2022 to his address of record. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
REGINALD GHAFFAAR McFADDEN,
DECISION & ORDER
Plaintiff,
16-CV-6105FPG
v.
ANTHONY J. ANNUCCI, JR., et al.,
Defendants.
_______________________________________

On November 16, 2015, pro se plaintiff Reginald Ghaffaar McFadden
commenced this action against the defendants pursuant to 42 U.S.C. § 1983 asserting claims
arising during his incarceration in the custody of the New York State Department of Corrections
and Community Supervision. (Docket ## 1, 71). Currently pending before this Court is
McFadden’s motion for the appointment of counsel. (Docket # 135).
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, 1260 (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, 61-62 (2d Cir. 1986).
Of course, to qualify for appointed counsel, a litigant must demonstrate that he is
otherwise unable to engage counsel on his own. See Hodge v. Police Officers, 802 F.2d at 61
(“the language of the statute itself requires that the indigent be unable to obtain counsel before
appointment will even be considered”). In this case, McFadden’s submissions fail to
demonstrate that he is unable to obtain counsel. To the contrary, the submissions suggest that
McFadden successfully identified an attorney willing to take his case, but that he “decided
against retaining” counsel due to his disagreement with her requested contingency fee. (Docket
# 140 at ¶ 4). Accordingly, appointment of counsel is not warranted in this case.1 See Chang v.

1

In his submissions, McFadden maintains that appointment of counsel is warranted due to his ongoing
treatment for cancer. (Docket # 135). According to McFadden, his degenerating health has impaired his ability to
litigate this case pro se. (Id.). Additionally, McFadden suggests that his access to the law library has been restricted
as a result of his treatment. (Id.). McFadden has also represented that he was recently diagnosed with Covid-19,
resulting in strict quarantine requirements that inhibit his access to the law library and writing materials. (Docket
# 140 at ¶ 1). To the extent McFadden maintains that his ability to comply with case-related deadlines has been
impeded by his medical conditions and treatments, McFadden should confer with counsel for defendants to
determine whether the parties can agree to extensions of the applicable deadlines. In the event they cannot agree,
McFadden may request extensions from the Court. To the extent McFadden maintains that his treatment-related
side effects interfere with his ability to adequately litigate this case and warrant the appointment of counsel, as
previously explained to McFadden, his submissions do not provide the requisite factual detail necessary to establish
that special circumstances justify appointment of counsel. (See Docket # 117) (“[plainitiff] does not specifically
allege what, if any, side effects he actually experiences because of his medication or his health issues[;] [t]hus, the
Court cannot find that [p]laintiff has a hindered ability in investigating facts or presenting his case”). For instance,
McFadden has not described his side effects, including what they are, how frequently the occur, how long they last,
whether they wane between treatments, and how specifically they impede his ability to litigate this action. He also
has not provided any details regarding his inability to access the law library, including the circumstances that
determine when and for what periods his access is limited. Even if the Court were to review medical records

2

Jenny JN Nails, Inc., 2021 WL 6339643, *2 (D. Conn. 2021) (“[t]he Second Circuit has made
clear that before an appointment of counsel is even considered, the indigent person must
demonstrate that he is unable to obtain counsel or legal assistance”) (quotation omitted);
Valde-Cruz v. Russo, 2021 WL 1318005, *2 (S.D.N.Y. 2021) (“[p]laintiff has not demonstrated
that he has made any effort to engage counsel, and his request should be denied on this basis
alone”); Walsh v. Buchanan, 2013 WL 145041, *3 (D. Conn. 2013) (“[t]he possibility that the
plaintiff may be able to secure legal assistance or representation independently precludes
appointment of counsel by the court at this time”).
On this record, McFadden’s request for the appointment of counsel (Docket
# 135) is DENIED without prejudice at this time. It is McFadden’s responsibility to retain an
attorney or continue with this lawsuit pro se. 28 U.S.C. § 1654.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
February 4, 2022

submitted by defendants in a separate action filed by McFadden and pending before this Court, they do not provide
the requisite detail. See 18-CV-6684 at Docket # 117.

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