Opinion
No. 06 Civ. 4978 (LTS)(KNF).
October 23, 2006
MEMORANDUM and ORDER
Timothy Green ("Green") commenced this action pro se, pursuant to 42 U.S.C. § 1983. He has requested that the Court appoint counsel to assist him. His application is addressed below.
Green contends that, in or about 1995, officials with the New York city Department of Corrections, who had him in custody, entered the agency's automated systems, and incorrectly and negligently recorded that he had a "security risk gang-related" status classification ("SRG"). As a result of that status classification, Green alleges that his ability to obtain inmate-work assignments in the jail facility was constrained and that he was defamed. He alleges further that, the entry in the agency's automated systems of his erroneous SRG status, has caused him emotional distress and has subjected him to harassment. Green maintains he has contacted appropriate corrections officials in an attempt to have them rectify the problem, but they have failed to do so. As a consequence, he has brought the instant action.
Unlike criminal defendants, prisoners, such as plaintiff, and indigents filing civil actions have no constitutional right to counsel. However, 28 U.S.C. § 1915(e)(1) provides that the Court may request an attorney to represent any person unable to afford counsel. Plaintiff made an application to proceed in forma pauperis which was granted. Therefore, he is within the class to whom 28 U.S.C. § 1915(e)(1) speaks.
"In deciding whether to appoint counsel, [a] district court should first determine whether the indigent's position seems likely to be of substance." See Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986), cert denied, 502 U.S. 986, 112 S. Ct. 596 (1991). This means that it appears to the court "from the face of the pleadings," (see Stewart v. McMickens, 677 F. Supp. 226, 228 [S.D.N.Y. 1988]), that the claim(s) asserted by the plaintiff "may have merit," (see Vargas v. City of New York, No. 97 Civ. 8426, 1999 WL 486926, at *2 [S.D.N.Y. July 9, 1999]), or that "plaintiff appears to have some chance of success. . . ." See Hodge, 802 F.2d at 60-61.
A plaintiff seeking redress through 42 U.S.C. § 1983 is required to establish the violation of a federal constitutional or a statutory right. See Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 1359 (1997). In the instant case, the plaintiff does not appear to have alleged a violation of a federal constitutional statutory right has occurred. Rather, Green has alleged what appear to be common-law tort claims. Therefore, it does not appear to the Court, from the face of his complaint, that this action may have merit. As a consequence, the Court finds that the appointment of counsel is not warranted in order for a just determination to be reached in this action. Accordingly, the plaintiff's application for the appointment of counsel is denied.
SO ORDERED.