Harding v. Canfield et al

Filing 52

DECISION & ORDER denying without prejudice 37 Motion to Appoint Counsel. It is the plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se. Signed by Hon. Marian W. Payson on 7/23/2020. Copy of this Decision & Order sent by First Class Mail to plaintiff Eric Harding on 7/23/2020 to his address of record. (KAH)

Case 6:17-cv-06024-EAW-MWP Document 52 Filed 07/23/20 Page 1 of 3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
ERIC HARDING,
DECISION & ORDER
Plaintiff,
17-CV-6024W
v.
KAYE CANFIELD, as the Administrator of
the Estate of Wesley Canfield, et al.,
Defendants.
_______________________________________

On January 11, 2017, pro se plaintiff Eric Harding (“plaintiff”) commenced this
action against the defendants pursuant to 42 U.S.C. § 1983 alleging violations of plaintiff’s
constitutional rights while he was incarcerated. (Docket ## 1, 8). Currently pending before this
Court is a motion filed by plaintiff seeking appointment of counsel. (Docket # 37).
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 (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;

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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 (2d Cir. 1986).
The Court must consider carefully the issue of appointment of counsel because
“every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer
lawyer available for a deserving cause.” Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d
Cir. 1989). Therefore, the Court must first look to the “likelihood of merit” of the underlying
dispute, Hendricks v. Coughlin, 114 F.3d at 392; Cooper v. A. Sargenti Co., Inc., 877 F.2d at
174, and “even though a claim may not be characterized as frivolous, counsel should not be
appointed in a case where the merits of the . . . claim are thin and his chances of prevailing are
therefore poor.” Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001)
(denying counsel on appeal where petitioner’s appeal was not frivolous but nevertheless
appeared to have little merit).
The Court has reviewed the facts presented herein in light of the factors required
by law and finds, pursuant to the standards promulgated by Hendricks, 114 F.3d at 392, and
Hodge v. Police Officers, 802 F.2d at 58, that the appointment of counsel is not necessary at this
time. As stated above, a plaintiff seeking the appointment of counsel must demonstrate a
likelihood of success on the merits. See id. Plaintiff has not done so at this stage. Moreover,
plaintiff’s conduct to date in prosecuting his claims suggest that plaintiff is capable of litigating

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this case without assistance at this time. Finally, plaintiff has not provided special reasons why
appointment of counsel would lead to a more just result. On this record, plaintiff’s request for
the appointment of counsel (Docket # 37) is DENIED without prejudice at this time. It is the
plaintiff’s responsibility to retain an attorney or press forward 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
July 23, 2020

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