Case Information
-PS- UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
BRIAN HAWKS,
Plaintiff, HON. HUGH B. SCOTT -v- 05CV156A ORDER COMMISSIONER ROCCO J. DIINA, et al.,
Defendants.
Plaintiff has applied to the Court for appointment of counsel pursuant to 28 U.S.C.
§ 1915(e) (Docket No. 13). There is no constitutional right to appointed counsel in civil cases. However, 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 in this matter is clearly within the judge's discretion. In re Martin-Trigona, 737 F.2d 1254 (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 (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., 877 F.2d 170, 172 (2d Cir. 1989). Therefore, the Court must first look to the "likelihood of merit" of the underlying dispute, Hendricks, supra, 114 F.3d at 392; Cooper, supra, 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).
The Court has reviewed the facts presented herein in light of the factors required by law. Plaintiff alleges that he was the victim of excessive force and racial harassment during his arrest, and that after he was shot during his arrest he was left without emergency assistance for one hour. Based on this review and the fact that plaintiff thus far appears to be sufficiently capable to present his claims to the Court , plaintiff's motion for appointment of counsel is denied without prejudice at this time. It is the plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C. § 1654. Nevertheless, in order to assist plaintiff in pursuing this case pro se, the Clerk of the Court is directed to send plaintiff the Court’s booklet entitled Pro Se Litigation Guidelines.
SO ORDERED.
/s/ Hugh B. Scott Hon. Hugh B. Scott United States Magistrate Judge Dated: Buffalo, New York
February 8, 2006
[1] Plaintiff claim s that he is being assisted by an able “jail house lawyer” and that he is about to be transferred by the New York State Departm ent of Correctional Services and that, upon his transfer, he will be denied the assistance of this jail house lawyer. W hether or not plaintiff can obtain assistance from the librarians or clerks at the facility to which he is transferred sim ply cannot be addressed or speculated about at this tim e. Since his transfer, plaintiff has not com plained that he lacks access to facilities within the prison to assist him in pursuing this case.
[2] Plaintiff should review the entire Guidelines, and then he should focus his attention on pages 14-19 regarding discovery, since his lawsuit is in the discovery stage at this tim e.