Robinson v. The U.S. Marshal's Service et al

Filing 39

ORDER denying 20 Motion to Appoint Counsel. Signed by Hon. H. Kenneth Schroeder Jr. on 1/15/2019. (KER)(Mailed to Plaintiff)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RAMEL ROBINSON
Plaintiff,
v.
U.S. MARSHAL WARD,
THOMAS GREINER,
Deputy U.S. Marshal,
and
JAMES R. SMITH,
Deputy U.S. Marshal,

6:17-CV-6319V(Sr)

Defendants.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. Lawrence J.
Vilardo, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report
upon dispositive motions. Dkt. #25.

Plaintiff commenced this action, pro se, seeking damages against U.S.
Marshals who allegedly failed to protect him from another inmate, against whom plaintiff
had testified in a murder trial, by allowing them to be in the same holding cell at the
federal courthouse in Rochester, New York, permitting the other inmate to assault
plaintiff. Dkt. #1.

Currently before the Court is plaintiff’s motion for appointment of counsel.
Dkt. #20. In support of the motion, plaintiff states that he does not know the law and is
housed in a facility which ignores his request to access the law library. Dkt. #20.

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 W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d
Cir. 1988). Assignment of counsel is clearly within the judge’s discretion. In re MartinTrigona, 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 crossexamination 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).

The Court must consider the issue of appointment carefully, of course,
because “volunteer lawyer time is a precious commodity.” Cooper v. A. Sargenti Co.
Inc., 877 F.2d 170, 172 (2d Cir. 1989). Therefore, the Court must not allocate pro bono
resources “arbitrarily, or on the basis of the aggressiveness and tenacity of the
claimant,” but should instead distribute this resource “with reference to public benefit.”
Id. Moreover, the Court must consider the “likelihood of merit” of the underlying
dispute. Hendricks, 114 F.3d at 392; Cooper, 877 F.2d at 174. “[E]ven though a claim
may not be characterized as frivolous, counsel should not be appointed in a case where

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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).

This case is in its initial stages, making it difficult to assess the merits of
plaintiff’s claim. However, there is no indication that plaintiff is incapable of presenting
his arguments to the Court. Plaintiff’s complaint and request for appointment of
counsel clearly communicate the facts of his claim. Dkt. #1 & Dkt. #20. Plaintiff has
submitted a request for production of documents seeking documentation relevant to his
claim. Dkt. #21. Moreover, plaintiff has been transferred to a federal penitentiary where
he should have access to legal resources. As a result, plaintiff has not established that
the appointment of counsel is warranted at this time under the factors set forth above.
It is the plaintiff's responsibility to retain an attorney or press forward with this lawsuit
pro se. 28 U.S.C. § 1654. Plaintiff’s request for appointment of counsel (Dkt. #20), is
denied without prejudice.

SO ORDERED.

DATED:

Buffalo, New York
January 15, 2019

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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