Summary
permitting defendant to incorporate by reference any portion of brief filed in support of its motion to dismiss original complaint and to include supplemental arguments in response to amended complaint filed during pendency of original motion to dismiss
Summary of this case from Dorchester Fin. Sec. Inc. v. Banco BRJ, S.A.Opinion
No. 02 Civ. 0947 (RCC) (RLE)
August 28, 2002
MEMORANDUM OPINION ORDER
On February 6, 2002, pro se plaintiff Pamela Harrison ("Harrison") filed a complaint against defendants New York City Administration for Children's Services, Frank Olton, John Pape, and Anthony Defazio, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., alleging discrimination based on race, color, and marital status. On February 28, 2002, the Honorable Richard C. Casey referred this case to Magistrate Judge Gabriel W. Gorenstein. On May 3, 2002, it was reassigned to the undersigned. Pending before this Court is Harrison's motion requesting assistance of 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 under 28 U.S.C. § 1915 (d). In making this determination, the court "exercises substantial "discretion, ' subject to the requirements that it be guided by sound legal principles." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) (citing Jenkins v. Chem. Bank, 721 F.2d 876, 879 (2d Cir. 1983)). The Court must first ask whether plaintiff can afford to obtain counsel. 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, 61-62 (2d Cir. 1986). "Courts do not perform a useful service if they appoint a volunteer lawyer to a case which a private lawyer would not take if it were brought to his or her attention." Cooper, 877 F.2d at 174.
Once initial determinations have been made as to indigence and merit, the court has discretion to consider the following factors: "the indigent's ability to investigate the crucial facts; whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder; the indigent's ability to present the case; the complexity of the legal issues involved; and any special reason why the appointment of counsel would be more likely to lead to a just determination." Hodge, 802 F.2d at 61-62.
Harrison has provided enough evidence to satisfy the threshold requirement regarding her inability to afford counsel. Terminate, 28 F.3d at 1341. She has been unemployed since February 12, 2002, and only has a de minimis amount in her savings account. Further, it appears that Harrison's complaint is of substance, as it alleges facts supporting claims of employment discrimination. However, in examining the factors set out in Hodge, the court observes that Harrison is capable of presenting her own case. In submissions to the court, she has demonstrated an ability to make arguments and draft pleadings. Moreover, her claims do not appear so overwhelmingly complex or fact intensive that she cannot be afforded a just determination without legal representation.
After careful review of the Harrison's application in light of the aforementioned principles, the Court finds that appointment of counsel is not warranted in this case. Harrison's motion is DENIED.
SO ORDERED.