Mosley v. Deperio

Full title: OSIRIS MOSLEY, Plaintiff, v. ANTHONY DEPERIO, et al., Defendants

Court: United States District Court, W.D. New York

Date published: Feb 8, 2005

No. 03-CV-6362 (W.D.N.Y. Feb. 8, 2005)

Opinion

No. 03-CV-6362.

February 8, 2005

DECISION AND ORDER

JONATHAN FELDMAN, Magistrate Judge

Factual Background

Currently pending before the Court is Plaintiff's Motion for Appointment of Counsel. (Docket #40). By Order of Judge Charles J. Siragusa, dated December 8, 2003, all pretrial motions excluding dispositive motions have been referred to me pursuant to 28 U.S.C. § 636(b) (1) (A)-(B). (Docket #14).

In his complaint, plaintiff alleges that defendants delayed one month in providing him medical treatment and prescribing medications for his headaches. (Docket #1).

Discussion

Plaintiff's Motion for Appointment of Counsel is denied without prejudice. Under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants. See, e.g., Sears, Roebuck Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). An assignment of counsel is a matter within the judge's discretion. See In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The factors to be considered in deciding whether or not to assign counsel were set forth by the Second Circuit inHodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986):

[T]he district judge should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider 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 and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.

Id. at 61-62. See also Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994) ("There is no requirement that an indigent litigant be appointed pro bono counsel in civil matters, unlike most criminal cases.").

Having reviewed the complaint and considered the nature of the factual and legal issues involved, as well as the plaintiff's ability to present his claims, I conclude that appointment of counsel is not warranted at this time. Plaintiff has drafted coherent and appropriate pleadings, briefs, and motions. The issue presented is not unusually complex and, at least at this point in time, plaintiff has shown that he is capable of prosecuting his case. Moreover, I find that plaintiff's opposition to defendants' summary judgement motion, which is currently pending before Judge Siragusa, is clear and coherent. Should Judge Siragusa determine that the appointment of counsel would provide substantial assistance in the development of plaintiff's arguments, or otherwise serve the interests of justice in deciding the pending dispositive motion, he may, of course, revisit the appointment of counsel issue.

Conclusion

For the foregoing reasons, plaintiff's motion for Appointment of Counsel is denied without prejudice to renew.

SO ORDERED.