Opinion
No. 03-CV-6369CJS.
February 8, 2005
DECISION ORDER
On August 4, 2003, plaintiff in the above-referenced matter filed a pro se Complaint pursuant to 42 U.S.C. § 1983, alleging that he was assaulted by the defendant correctional officers. (Docket # 1). By order dated February 20, 2004, this matter was referred to the undersigned for the supervision of pre-trial discovery and the hearing and disposition of all non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(A) and (B). (Docket # 10). Currently before this Court is plaintiff's motion for the appointment of counsel. (Docket # 33). For the following reasons, plaintiff's motion is denied.
It is well settled that there is no constitutional right to appointed counsel in civil cases. However, under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants. See, e.g., Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). Assignment of counsel in this matter is clearly within the judge's discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). The factors to be considered in deciding whether or not to assign counsel include the following:
1. Whether the indigent's claims seem likely to be of substance;
2. Whether the indigent is able to investigate the crucial facts concerning his claim;
3. Whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder;
4. Whether the legal issues involved are complex; and
5. Whether there are any special reasons why appointment of counsel would be more likely to lead to a just determination.Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986).
The Court must consider the issue of appointment carefully, of course, because "every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989). Therefore, the Court must first look to the "likelihood of merit" of the underlying dispute, Hendricks, 114 F.3d at 392; Cooper, 877 F.2d at 174, and "even though a claim may not be characterized as frivolous, counsel should not be appointed in a case where the merits of the . . . claim are thin and his chances of prevailing are therefore poor." Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (denying counsel on appeal where petitioner's appeal was not frivolous but nevertheless appeared to have little merit).
The Court has reviewed the facts presented herein in light of the factors required by law. Plaintiff alleges that during his period of incarceration, he was assaulted by the defendant correctional officers. While plaintiff is no longer incarcerated, he requests the assignment of counsel because he has been unable to obtain private counsel. Pursuant to the standards promulgated by Hendricks, 114 F.3d at 392, and Hodge, 802 F.2d at 58, it does not appear that counsel will provide substantial assistance in developing petitioner's argument at this time. Indeed, the legal issues in this case do not appear to be complex and plaintiff has not alleged an inability to investigate the relevant facts. Thus, plaintiff's motion for appointment of counsel is denied without prejudice at this time. It is the plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C. § 1654.
CONCLUSION
For the foregoing reasons, plaintiff's motion for the appointment of counsel (Docket # 33) is DENIED.
IT IS SO ORDERED.