Peterkin v. Summer et al
Filing
86
DECISION AND ORDER: For the reasons stated in the Decision and Order, Plaintiff's 85 Motion to Appoint Counsel is DENIED. SO ORDERED. A copy of the Decision and Order has been mailed to the pro se plaintiff. Signed by Hon. Frank P. Geraci, Jr. on 10/21/19. (GMS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
KAHENE PETERKIN,
Plaintiff,
Case # 17-CV-6106-FPG
v.
DECISION AND ORDER
C.O. SUMMER,
Defendant.
___________________________________
This is a 42 U.S.C. § 1983 civil rights case that has been set for trial. On October 17, 2019,
pro se Plaintiff Kahene Peterkin filed a motion asking the Court to appoint counsel to try his case.
ECF No. 85. For the reasons stated below, Plaintiff’s motion is DENIED.
There is no constitutional right to appointed counsel in civil cases. Carlton v. Pearson,
351 F. Supp. 3d 265, 267 (W.D.N.Y. 2018). 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, 1260 (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; 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 why appointment of
1
counsel would be more likely to lead to a just determination. See Hendricks v. Coughlin, 114 F.3d
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 here. This case involves a single claim that Defendant infringed upon Plaintiff’s free
exercise of religion by refusing to allow him out of his cell to attend Eid ul Fitr congregational
prayer services and by yelling “F--- the Muslims” at Plaintiff. ECF No. 1 at 5. Thus, “the trial
will likely turn on the jury’s determination as to the credibility of the witnesses, not any complex
factual or legal issues which Plaintiff is incapable of handling on his own.” Carlton, 351 F. Supp.
3d at 269. Further, Plaintiff’s prior submissions are articulate and it appears that he can adequately
present his own claims. While Plaintiff asserts that his glaucoma makes it difficult for him to read
small print and will hamper his ability to prepare for trial, he has nevertheless adequately
prosecuted this case up to this point, including by participating in discovery and propounding
interrogatories. See id. (denying appointment of counsel where plaintiff participated in discovery
and propounded interrogatories).
Accordingly, Plaintiff’s Motion to Appoint Counsel (ECF No. 85) is DENIED.
IT IS SO ORDERED.
Dated: October 21, 2019
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
2
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?