two physicians from the private sector, on at least five separate occasions. In fact, a Greenhaven staff physician apparently convinced Dr. Juidabl to see McCullough for a second time, which led to his finding that surgery was necessary.
The Court also notes that there has been no showing that the delay in plaintiff's surgery was the result of malfeasance. For example, there is no evidence that Dr. Goldman's decision to cease treatment of Greenhaven prisoners was caused by the deliberate indifference of Greenhaven or its staff. Further, after Dr. Juidabl determined that surgery was appropriate, the procedure scheduled for January was postponed because of McCullough's heart condition. These delays in treatment reflect neither negligence nor deliberate indifference, and McCullough's action must be dismissed.
C. Appointment of Counsel
The Court next turns to McCullough's objection to the Court's failure to provide him with counsel. In deciding whether counsel should be appointed pursuant to 28 U.S.C. § 1915(d), "a district court exercises substantial 'discretion,' subject to the requirement that it be 'guided by sound legal principle.'" Cooper v. A. Sargenti Co., 877 F.2d 170, 171-72 (2d Cir. 1989) (quoting Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983)).
The standard for determining whether counsel should be appointed for an indigent plaintiff under section 1915(d) was addressed by the Second Circuit in Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986).
The 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.
These factors are not exclusive, and need not control the court's decision in every case. Id.
In addition, the Second Circuit has recently emphasized that the relative merit of the indigent's claim is the overriding concern in determining whether counsel should be appointed.
Since Hodge the volunteer lawyer panels of the district courts are drowning in requests. . . . Every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause. . . . These observations underline the importance of our ruling in Hodge requiring the indigent seeking a free lawyer to first pass the test of likely merit.
Cooper, supra, 877 F.2d at 172-74.
In examining an indigent's challenge to the failure to appoint counsel, a court must examine the record that existed when this decision was made, without the benefit of hindsight. Hodge, 802 F.2d at 62 ("'The question of appointment of an attorney is a preliminary inquiry and should not be based upon the evidence adduced at trial.'" (quoting Jenkins, 721 F.2d at 880)). Thus, in the instant case, the Court must determine whether counsel should have been appointed based on an examination of the record as it existed when Judge Lee withdrew the January 27 Order, which had initially determined that counsel should be appointed.
Turning to the April 24 Order, the Court finds that it was improper for Judge Lee to withdraw her appointment of counsel based solely on the absence of a volunteer to take McCullough's case. As discussed in Cooper, appointment of counsel should be determined based on the merits of the indigent's claim and on the other Hodge factors. See, e.g., Holmes v. Keane, 1992 U.S. Dist. LEXIS 1068, at *16-18 (S.D.N.Y. Feb. 4, 1992) (lack of merit); McDowell v. New York, 1991 U.S. Dist. LEXIS 12180, at *3-6 (S.D.N.Y. Sept. 3, 1991) (absence of novel legal issues); Odom v. Sielaff, 1991 U.S. Dist. LEXIS 12197, at *3-6 (S.D.N.Y. Aug. 30, 1991) (Lee, Mag. J.) (lack of merit and lack of complexity of legal issues); see also Christensen v. Bristol-Myers Co., 1990 U.S. Dist. LEXIS 541, at *8 (S.D.N.Y. Jan. 22, 1990) (withdrawing appointment of counsel because plaintiff misrepresented assets). The absence of a volunteer lawyer to represent an indigent client, standing by itself, should not be dispositive of the indigent's application for appointment of counsel.
Although the Court disagrees with the stated basis for the April 24 Order, it nevertheless holds that appointment of counsel was not appropriate in the instant case. McCullough's Complaint relied primarily on conclusory allegations concerning alleged denials of medical care. Rather than citing specific occasions upon which care was denied, plaintiff averred generally that his surgery had been cancelled deliberately. See Complaint, at A. On this record, Judge Lee determined that appointment of counsel was appropriate, not because "the indigent's position seems likely to be of substance," Hodge, 802 F.2d at 61, but rather because the strength of McCullough's claim could not be determined on the face of the pleadings, and was likely to involve issues of credibility. See January 27 Report, at 2. However, this result appears to be contrary to Second Circuit teaching, which requires a threshold showing of merit to justify appointment of counsel. See, e.g., Bates v. Scully, 1989 U.S. Dist. LEXIS 11268, at *2-3 (S.D.N.Y. Sept. 21, 1989) (Bernikow, Mag. J.) (denying application for appointment of counsel without prejudice with leave to renew upon development of record indicating meritorious claim).
Subsequent to the January 27 Order, discovery proceeded apace. In fact, when the April 24 Order was issued fifteen months later and Judge Lee determined that counsel should not be appointed, a wide range of documents had been produced, which reflected a consistent pattern of treatment for McCullough's varicose veins, including stockings, visits to various physicians and surgery. Thus, by the time the appointment of counsel was withdrawn, Judge Lee had a wealth of evidence before her to support a finding that McCullough's claims were without merit, and that counsel should not have been appointed. Thus, the denial of McCullough's application was supported by substantial evidence, and plaintiff's objection to the failure of the Court to appoint counsel to represent him is rejected.
For the foregoing reasons, defendants' summary judgment motion is granted. McCullough's section 1983 action is hereby dismissed.
Dated: February 18, 1992
New York, New York
Peter K. Leisure