Opinion
No. 04 Civ. 4656 (SHS)(KNF).
January 21, 2005
MEMORANDUM and ORDER
In this action, brought pursuant to 42 U.S.C. § 1983, Kahene Peterkin ("Peterkin"), who is proceeding pro se, has made an application that the Court appoint counsel to represent him. Peterkin alleges, through his amended complaint, that his civil rights were violated when a corrections officer employed by the New York City Department of Corrections ("NYCDOC") assaulted him while another corrections officer, who witnessed the assault, failed to intervene and stop it. In addition, Peterkin contends that, following the assault, he was taken to the clinic at the NYCDOC facility where he was being held, but was denied adequate medical treatment by a physician's assistant employed by NYCDOC.
Unlike criminal defendants, indigents like the plaintiff 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. In the case at bar, the plaintiff made an application to proceed in forma pauperis, which was granted. Consequently, 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." 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 pleading" (Stewart v. McMickens, 677 F. Supp. 226, 228 [S.D.N.Y. 1988]), that the claim(s) asserted by the plaintiff "may have merit," (Vargas v. City of New York, No. 97 Civ. 8426, 1999 WL 486926, at *2 [S.D.N.Y. July 9, 1999]), or that the plaintiff "appears to have some chance of success. . . ."Hodge, 802 F.2d at 60-61.
In the case at bar, a review of the docket sheet maintained by the Clerk of Court indicates that the plaintiff has not effected service of the summons and complaint upon the defendants. Furthermore, pursuant to Fed.R.Civ.P. 4, the plaintiff was required to serve the summons and complaint upon the defendants within 120 days of the filing of his complaint. Peterkin filed his complaint in June 2004 and filed an amended complaint in August 2004. Therefore, the time by which he should have effected service of the summons and complaint, pursuant to Fed.R.Civ.P. 4, has elapsed.
In this circumstance, appointing an attorney to represent the plaintiff would not be a prudent use of a scarce resource, the services of pro bono counsel, since Peterkin's ability to maintain this action is suspect, inasmuch as he has not effected service of the summons and complaint timely. Therefore, Peterkin's application for appointment of counsel is denied.
SO ORDERED.
ORDER
By Order of the Court dated October 27, 2004, the plaintiff was directed to serve the summons and complaint upon the defendants and to file proof of that service with the Clerk of Court on or before November 29, 2004. Inasmuch as the plaintiff filed an amended complaint and was issued a summons in August 2004, the time for him to effect service upon the defendants would not have expired until December 2004.A review of the docket sheet maintained by the Clerk of Court for this action does not reveal that the plaintiff has effected service of the summons and complaint upon the defendants. However, since the Court's October 27, 2004 order could reasonably be construed as curtailing the time allotted to the plaintiff by Rule 4 of the Federal Rules of Civil Procedure to effect service of the summons and complaint, it is appropriate to grant Peterkin additional time to serve the summons and complaint upon the defendants. Therefore, on or before February 22, 2005, Peterkin shall serve the summons and complaint on the defendants and file proof of that service with the Clerk of Court. If the defendants are not served with the summons and complaint on or before that date and if the plaintiff fails to show cause, in writing, why service has not been effected, a report and recommendation will be made to the assigned United States district judge that the amended complaint be dismissed for failure to prosecute pursuant to Rules 4 and 41 of the Federal Rules of Civil Procedure. The plaintiff is directed to contact the Pro Se Office for this judicial district at 500 Pearl Street, Room 230, New York, New York 10007, telephone number (212) 805-0175, for any procedural assistance the plaintiff may require.
SO ORDERED.