Opinion
08 Civ. 559 (JSR) (KNF).
May 13, 2009
MEMORANDUM and ORDER
James Anderson, who is proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983, alleging the defendants violated the Eighth Amendment by exhibiting deliberate indifference to his medical needs. The plaintiff made an application to the Court previously for counsel to be appointed to assist him in prosecuting this action. See 28 U.S.C. § 1915(e)(1). However, the application was denied, because the plaintiff failed to indicate he had made any effort to engage counsel prior to presenting the application to the Court. See Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986); Abukar v. Commissioner of Social Security, No. 07 CV 1770, 2007 WL 2729858, at *2 (S.D. Cal. Sept. 19, 2007).
The plaintiff has made a new application for court-appointed counsel. With that application the plaintiff has included documentary evidence establishing his unsuccessful attempt(s) to obtain counsel to assist him in prosecuting this action. Therefore, it is reasonable and appropriate for the Court to entertain the instant application for court-appointed counsel.
When an application is made for the appointment of counsel by an indigent civil litigant, such as the plaintiff, the following criteria are to be applied by a court in determining whether to grant the application: 1) the merits of the party's claim; 2) the party's ability to pay for private counsel; 3) the party's effort to obtain counsel; 4) the availability of counsel; and 5) the party's ability to gather and use the relevant facts in the prosecution of the action. See Cooper v. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). With respect to the merits of a plaintiff's claim(s), it must appear to the court, "from the face of the pleadings," 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 (2d Cir. 1986).
In the case at bar, the plaintiff alleges the defendants failed to notify him timely of the hepatitis diagnosis made of him and failed deliberately to treat his condition appropriately. From the face of the complaint, which has survived a dispositive motion made by the defendants, it appears the plaintiff's claim may have merit.
The trial of this action will likely turn on the resolution of hotly contested factual allegations. The contested factual allegations will best be explored by one who is skilled at cross-examination. Nothing in the record before the Court indicates the plaintiff has that skill. Furthermore, it is likely that expert medical testimony will have to be developed and presented by the parties. Nothing in the record indicates the plaintiff has the skills necessary to perform those tasks adequately. The record before the Court indicates the plaintiff has attempted to recruit counsel to assist him in meeting these challenges, but his effort has not been successful. When considered collectively, the above-noted factors militate in favor of granting the plaintiff's request for counsel.
For the reasons set forth above, the plaintiff's application for appointment of counsel is granted. The Pro Se Office for this judicial district is directed to request pro bono counsel for the plaintiff in accordance with the Pro Bono Panel's procedures.
SO ORDERED: