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declining to appoint counsel in case claiming age and disability-based discrimination
Summary of this case from Lefebvre v. AstrueOpinion
No. 04 Civ. 1850 (BSJ) (RLE).
March 30, 2005
OPINION ORDER
I. INTRODUCTION
On March 8, 2004, pro se plaintiff Michael Halpert ("Halpert") filed this action against defendant Manhattan Apartments claiming age and disability discrimination, in violation of the Age Discrimination in Employment Act of 1967, as codified, 29 U.S.C. §§ 621-34 and Americans with Disabilities Act of 1990, as codified, 42 U.S.C. §§ 12112- 12117. Prior to initiating this action, Halpert filed a complaint with the New York State Division of Human Rights on October 16, 2001, alleging that one of defendant's brokers failed to hire him as an agent because of his age. See Exhibit A to defendant's motion to dismiss. The Division found no probable cause to believe that defendant engaged in the unlawful discriminatory conduct of which Halpert complained, and it dismissed Halpert's charges on September 22, 2003. Id. The United States Equal Employment Opportunity Commission ("EEOC") adopted the Division's findings on October 30, 2003. On May 26, 2004, defendant filed a motion to dismiss Halpert's complaint in this action, and Halpert did not respond to the motion.
By order, dated December 21, 2004, the Honorable Barbara S. Jones ruled that defendant's motion to dismiss should be converted to a motion for summary judgment because defendant attached affidavits and other supporting documents to the motion. In addition, Judge Jones ruled that if Halpert failed to respond to defendant's motion within thirty (30) days of the date of the order, the Court would decide defendant's motion unopposed.
On February 15, 2005, Halpert filed an application for counsel, and on March 3, 2005, he requested an extension of time to respond to defendant's motion. For the following reasons, Halpert's application for counsel, and his request for an extension to respond to defendant's motion are DENIED.
II. HALPERT'S ALLEGATIONS
In this action, Halpert alleges that defendant discriminated against him based on his age and disability when its broker failed to hire him for a prospective position. Compl. at 3. In particular, Halpert alleges that on October 10, 2001, VESID disability placement center sent him on an interview at defendant's offices, where he met "Mr. Bob Brooks," who allegedly stated that he was the "boss" and ran defendant's operation as head broker. Id. at 4. In addition, Brooks allegedly told Halpert that he was too old to work in the prospective position, and he asked why the disability placement center had not sent a younger applicant. Id. Halpert was born on September 19, 1957, and his disability consists of gun shot wounds to his leg and left arm resulting from circumstances which he does not explain. Id. at 3.III. DISCUSSION
Civil litigants, unlike criminal defendants, do not have a constitutional right to the appointment of counsel. However, under 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." The Court of Appeals for the Second Circuit has articulated the factors that a court should consider in deciding whether to appoint counsel for an indigent civil litigant. The court "exercises substantial discretion, subject to the requirement that it be guided by sound legal principles." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) ( citing Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983) (internal quotations omitted)). The court's first inquiry is whether plaintiff can afford to obtain counsel. See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). If the court finds that a plaintiff cannot afford counsel, it must then examine the merits of the case and "determine whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). To make such determination, the court must decide whether, "from the face of the pleading," the claims asserted by the plaintiff "may have merit," or whether the plaintiff "appears to have some chance of success." Baskerville v. Goord, 2001 WL 527479, at *1 (S.D.N.Y. May 16, 2001) (internal citations omitted).
Once an initial determination has been made as to indigence and merit, the court has discretion to consider the following factors: (1) the indigent's ability to investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the factfinder; (3) the indigent's ability to present the case; (4) the complexity of the legal issues; and (5) any special reason why appointment of counsel would be more likely to lead to a just determination. Hodge at 61-62. None of these factors are controlling; the court must examine each case on its own facts. Id. at 61.
Here, Halpert satisfies the threshold requirement of indigence insofar as his request to proceed in forma pauperis was granted on March 8, 2004. He has shown the ability to properly file a complaint, including relevant facts in his case. Furthermore, this case does not present novel or overly complex legal issues, and Halpert has not given a clear indication that he lacks the ability to present his case. On the contrary, Halpert has informed the Court on several occasions that he has communicated with and gathered information from the New York State Real Estate Board and others to support his case.
After careful review of Halpert's application in light of the aforementioned principles and the Court's December 21, 2004 order, the Court finds neither appointment of counsel, nor an extension of time to respond to defendant's motion are warranted. Accordingly, Halpert's application and request for an extension to answer defendant's motion are DENIED.