Hancock v. Hasper et al
Filing
25
DECISION & ORDER Plaintiff's motion to appoint counsel 24 is denied without prejudice at this time. It is plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se. Signed by Hon. Marian W. Payson on 4/19/2019. Copy of this Decision & Order sent by First Class Mail to Winston M. Hancock on 4/19/2019 to his address of record. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
WINSTON M. HANCOCK,
DECISION & ORDER
Plaintiff,
17-CV-6336CJS
v.
JOEL HASPER,
Defendant.
_______________________________________
Pro se plaintiff Winston M. Hancock (“plaintiff”) has filed suit pursuant to 42
U.S.C. § 1983 against defendant Joel Hasper (“defendant”), an officer with the Rochester Police
Department, for false and retaliatory arrest and excessive force in connection with the arrest, in
violation of the Fourth Amendment.1 (Docket # 4). Currently pending before this Court is
plaintiff’s request for the appointment of counsel. (Docket # 24).
Motion for Appointment of Counsel
It is well-settled that there is no constitutional right to appointed counsel in civil
cases. See Boyd v. Petralis, 2017 WL 4533649, *1 (W.D.N.Y. 2017); Baez v. Rathbun, 2017
WL 1324557, *1 (W.D.N.Y. 2017). 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
1
Plaintiff filed an original and an amended complaint, naming as defendants Joel Hasper, in both his
individual and official capacities, and the City of Rochester. (Docket ## 1, 4). Both complaints were screened
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A). (Docket ## 3, 7). The claims against the City of Rochester
and Joel Hasper in his official capacity have been dismissed. (Docket # 7 at 4-6). The claims of false and
retaliatory arrest and excessive force against Joel Hasper in his individual capacity remain pending. Id. at 3-4.
judge’s discretion. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The factors to be
considered in deciding whether 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 for 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 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).
2
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, 802 F.2d at 61-62, that the appointment of counsel is not warranted at this time. As
stated above, a plaintiff seeking the appointment of counsel must demonstrate some likelihood of
success on the merits, which plaintiff has not done at this stage. Consideration of the nature of
the factual and legal issues involved in this case, as well as plaintiff’s ability to present his
claims, also weighs against appointment of counsel.
Plaintiff’s amended complaint asserts that defendant unlawfully arrested him and
used excessive force in making the arrest, in violation of the Fourth Amendment. (Docket # 4).
These legal claims are relatively straightforward.
Moreover, plaintiff’s conduct in prosecuting this matter strongly suggests that he
is capable of understanding and handling the litigation.2 See McLean v. Johnson, 2017 WL
4157393, *1 (W.D.N.Y. 2017) (incarceration alone does not warrant the appointment of
counsel). To date, plaintiff has filed an amended complaint, filed motions with the Court, and
participated in a scheduling conference. (Docket ## 4, 12, 23). At the scheduling conference on
August 30, 2018, plaintiff appeared by telephone and addressed the scheduling order with
counsel and the Court. (Docket # 20). Finally, plaintiff’s case does not present any special
reasons justifying the assignment of counsel.
The Court has previously provided plaintiff with a copy of the Court’s Pro Se Guidelines to assist him;
another copy is enclosed herewith.
2
3
Plaintiff’s motion to appoint counsel (Docket # 24) is DENIED without
prejudice at this time. It is 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 19, 2019
4
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?