Houston v. Collman et al
DECISION & ORDER Plaintiff's request for the appointment of counsel 32 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. Signed by Hon. Marian W. Payson on 4/5/2017. Copy of Decision & Order sent by First Class Mail to plaintiff Eddie Houston on 4/5/2017. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION & ORDER
COLLMAN, et al,
On August 15, 2016, pro se plaintiff Eddie Houston (“plaintiff”) commenced this
action against the defendants pursuant to 42 U.S.C. § 1983 alleging, inter alia, that defendants
used excessive force against him and failed to intervene in violation of the Eighth Amendment,
retaliated against him in violation of the First Amendment, and denied him equal protection in
violation of the Fourteenth Amendment. (Docket ## 1, 6). Currently pending before this Court
is plaintiff’s request for appointment of counsel. (Docket # 32).
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:
Whether the indigent’s claims seem likely to be of
Whether the indigent is able to investigate the crucial facts
concerning [her] claim;
Whether conflicting evidence implicating the need for
cross-examination will be the major proof presented to the
Whether the legal issues involved are complex; and
Whether there are any special reasons why appointment of
counsel would be more likely to lead to a just
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 the issue of appointment carefully, of course, 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,
despite the direction in a previous decision denying counsel that plaintiff demonstrate his efforts
to obtain counsel on his own in any renewed request, (Docket # 12), plaintiff has not
demonstrated any attempts to obtain counsel.
The legal issues in this case do not appear to be complex, nor does it appear that
conflicting evidence will implicate the need for extensive cross-examination at trial. Finally,
plaintiff’s case does not present any special reasons justifying the assignment of counsel.
Although in his request for counsel, which was apparently drafted with assistance, plaintiff
makes conclusory suggestions that he is entitled to representation due to his disabilities,
including “limited education [and] comprehension skill level,” nothing in plaintiff’s submissions
to date suggest that he is incapable of litigating this case pro se. On this record, plaintiff’s
request for the appointment of counsel (Docket # 32) 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
April 5, 2017
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