Ragsdale v. Confer et al
DECISION & ORDER Plaintiff's request for the appointment of counsel 72 is denied without prejudice at this time. It is plaintiff's responsibility to retain an attorney or continue with this lawsuit pro se. Signed by Hon. Marian W. Payson on 5/10/2022. Copies of this Decision & Order were sent by First Class Mail to plaintiff Trevis Ragsdale on 5/10/2022 to both Attica Correctional Facility and to Upstate Correctional Facility. (KAH)
Case 6:21-cv-06188-FPG-MWP Document 32 Filed 05/10/22 Page 1 of 3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION & ORDER
CONFER, et al.,
On February 25, 2021, pro se plaintiff Trevis Ragsdale commenced this action
against the defendants pursuant to 42 U.S.C. § 1983 arising from an incident in which he was
allegedly assaulted and injured by various correctional officers while incarcerated at Five Points
Correctional Facility. (Docket ## 1, 6). Currently pending before this Court is plaintiff’s motion
for the appointment of counsel. (Docket # 22).
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, 1260 (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 his claim;
Case 6:21-cv-06188-FPG-MWP Document 32 Filed 05/10/22 Page 2 of 3
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, 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
(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.
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, the legal issues
Case 6:21-cv-06188-FPG-MWP Document 32 Filed 05/10/22 Page 3 of 3
in this case – use of excessive force, failure to protect, denial of medical care, and denial of due
process – do not appear to be complex.
Although plaintiff maintains that his ability to read and write is limited, his
conduct in prosecuting this matter thus far suggests that he is capable of understanding and
handling the litigation. He has drafted a lengthy complaint and submitted an amended complaint
in accordance with the district court’s screening order. (Docket ## 1, 3, 6). Additionally, he has
filed several motions seeking relief from the Court (Docket ## 4, 5, 7, 16, 17, 22, 25, 26),
demonstrating his ability to seek court intervention when he believes it is warranted. Finally,
plaintiff’s case does not present any other special reasons justifying the assignment of counsel.
On this record, plaintiff’s request for the appointment of counsel (Docket # 22) is
DENIED without prejudice at this time. It is plaintiff’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
May 10, 2022
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