Griggs v. Schmauss et al

Filing 48

DECISION & ORDER Griggs's request for the appointment of counsel 44 is denied without prejudice at this time. It is Griggs's responsibility to retain an attorney or continue with this lawsuit pro se. 28 U.S.C. § 1654. Signed by Hon. Marian W. Payson on 6/17/2022. A copy of this Decision & Order was sent by First Class Mail to plaintiff Perry Griggs on 6/17/2022 to his address of record. (KAH)

Case 6:17-cv-06456-EAW-MWP Document 48 Filed 06/17/22 Page 1 of 4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
PERRY GRIGGS,
Plaintiff,
v.

DECISION & ORDER
17-CV-6456EAW

R. SCHMAUSS, DDS,
Defendant.
_______________________________________

On July 12, 2017, pro se plaintiff Perry Griggs (“Griggs”) commenced this action
against the defendant pursuant to 42 U.S.C. § 1983 alleging that he was deliberately indifferent
to his medical needs in violation of the Eighth Amendment. (Docket # 1). Currently pending
before this Court is Griggs’s motion seeking appointment of counsel. (Docket # 44). According
to Griggs, counsel is necessary because he suffers from several mental impairments that impede
his ability to litigate this matter. (Id.). Griggs maintains that during his deposition counsel for
defendant advised Griggs to request appointment of counsel from the Court. (Id.). Defendant
responded to the motion indicating that he took no position with respect to Griggs’s request.
(Docket # 46). In the submission, defendant’s counsel clarified that she informed Griggs that he
could request that the Court appoint counsel after Griggs expressed doubts concerning his ability
to complete the deposition without the assistance of counsel. (Id. at ¶¶ 6-8). Despite Griggs’s
misgivings, the deposition was completed and a copy of the transcript was attached to
defendant’s submission. (Docket # 46-1).
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.

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§ 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, 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
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, 61-62 (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 [plaintiff’s] chances of
prevailing are therefore poor.” Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632

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(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 stated by Hendricks, 114 F.3d at 392, and Hodge v.
Police Officers, 802 F.2d at 61-62, that the appointment of counsel is not warranted at this time.
Although it appears that discovery has been conducted in this case, Griggs has not established a
likelihood of success on the merits. Moreover, the legal issues in this case do not appear to be
complex.
In addition, Griggs’s conduct in prosecuting this matter thus far strongly suggests
that he is capable of understanding and handling the litigation, contrary to his claims in the
pending motion. Griggs drafted the complaint and successfully sought reconsideration of a
Decision and Order dismissing the complaint. (Docket ## 1, 10, 11). He has sent
correspondence to the Court updating his address and seeking assistance in serving the defendant
and an extension of time within which to do so. (See, e.g., Docket ## 24, 25, 27, 28). Moreover,
review of the transcript of Griggs’s deposition suggests that despite his reservations about
conducting the deposition without legal representation, Griggs was able to participate in the
deposition and it was ultimately completed. (Docket # 45-1).
Although Griggs alleges that he suffers from mental health impairments including
cognitive deficits, schizophrenia, and PTSD, he has not otherwise demonstrated that those
impairments limit his ability to litigate this case. Appointment of counsel is thus not warranted
on this basis, especially where Griggs has shown an ability to pursue his claims in this case. See,
e.g., Perez v. Cnty. of Monroe, 2012 WL 4052470, *2 (W.D.N.Y. 2012) (denying appointment of
counsel where pro se plaintiff was “capable of prosecuting his case” and “equipped to
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understand the litigation process” despite “mental health disabilities”); Lewis v. Turco, 2010 WL
2287509, *1 (W.D.N.Y. 2010) (appointment of counsel denied where pro se plaintiff had not
demonstrated that mental health issues would hinder his ability to litigate his claims); Byng v.
Campbell, 2008 WL 4662349, *6 (N.D.N.Y. 2008) (denying appointment of counsel where
pro se plaintiff was “able effectively to litigate” his claims notwithstanding various “medical and
mental health issues”). Finally, Griggs’s case does not present any special reasons justifying the
assignment of counsel.
On this record, Griggs’s request for the appointment of counsel (Docket # 44) is
DENIED without prejudice at this time. It is Griggs’s responsibility to retain an attorney or
continue 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
June 17, 2022

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