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CORONADO v. LEFEVRE

May 11, 1995

ROLANDO CORONADO, Plaintiff,
v.
EUGENE S. LEFEVRE, Superintendent, Clinton Correctional Facility; THOMAS A. COUGHLIN, Commissioner, Defendants.



The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.

 This matter is before the court on the pro se plaintiff's application for appointment of counsel, made following notice that the action was being placed on a trial-ready list. The underlying complaint, brought pursuant to 42 U.S.C. § 1983, alleges violations of the plaintiff's Eighth and Fourteenth Amendment rights which occurred during his incarceration at the Clinton Correctional Facility. For the reasons set forth below, the court denies the plaintiff's application.

 The complaint refers to two separate incidents. In the first, on July 18, 1988, corrections officers at the Clinton Correctional Facility observed the plaintiff fighting with another prisoner. *fn1" Both prisoners used "homemade shanks," though only the one used by the plaintiff was recovered. The plaintiff suffered several laceration and puncture wounds to his back, as well as abrasions and scratches on his shoulder, arms, and face. Unusual Incident Reports, Defendants' Response, Ex. A.

 In the second incident, on September 8, 1988, corrections officers found the plaintiff in his cell with two lacerations on his face: one six or seven inches long, the other four inches long and deep. No weapons were found, and the plaintiff "would not make any statements." Defendant LeFevre, then Superintendent of the facility, was notified approximately fifteen minutes after the incident occurred. Unusual Incident Report, Defendants' Response, Exhibit A. *fn2"

 It is the plaintiff's contention that corrections officers at the Clinton Correctional Facility were "negligent in not being cautious about frisking prisoners for weapons," and this negligence resulted in his injuries. Compl. at 2. The corrections officers are not defendants, however. Rather, the plaintiff named as defendants Eugene LeFevre, the former Superintendent of the Clinton Correctional Facility, and Thomas Coughlin, the Commissioner of the New York State Department of Corrections. The plaintiff apparently seeks to hold these officials liable based upon their allegedly negligent supervision of the security precautions taken by the officers. He seeks injunctive relief and compensatory damages in the amount of $ 500,000.

 DISCUSSION

 The plaintiff is requesting appointment of counsel for the fourth time. *fn3" The court has authority to appoint counsel for indigent plaintiffs in civil cases pursuant to 28 U.S.C. § 1915(d), which provides," the court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." *fn4" Appointment of counsel in civil actions is at the discretion of the court. Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). The Second Circuit has outlined the requirements for the consideration of such motions. Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986), cert. denied, 112 S. Ct. 596 (1991).

 Initially, the Hodge court explained, "the language of the statute itself requires that the indigent be unable to obtain counsel before appointment will even be considered." 802 F.2d at 61. Once it has been determined that the plaintiff has been unable to obtain counsel, the court must decide whether the plaintiff has a substantial claim or is likely to succeed on the merits. If so, the court must consider additional, enumerated factors. Burgos, 14 F.3d at 789 (citing Hodge, 802 F.2d at 61-62). Because the court finds that the plaintiff herein is unlikely to succeed on the merits, the other factors need not be addressed.

 A. Inability to Obtain Counsel

 The Second Circuit has stated that, although it is within the district court's discretion to decide whether an indigent is unable to obtain counsel, "the court may take notice of the fact that most indigent incarcerated prisoners do not in fact have the resources, knowledge and experience needed to find counsel willing to represent them without charge." McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988). "The court may [also] . . . require the pro se to specify what efforts he has made in an attempt to obtain counsel himself." Id.

 In this case, the plaintiff is an indigent prisoner serving a life sentence. Furthermore, the plaintiff has documented his unsuccessful attempts to obtain counsel. Letter from Plaintiff to Court of 11/8/89 (Docket # 11). The plaintiff contacted the Prisoners' Legal Services of New York and the Clinton County Bar Association, and both declined to take his case. Therefore, the court finds that the plaintiff has sufficiently demonstrated his inability to obtain counsel.

 B. Merit of Claim

 Courts have treated the merit of the indigent's claim as the primary factor in determining whether to appoint counsel, 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., 877 F.2d 170, 172 (2d Cir. 1989). A plaintiff is considered to have a substantial claim if he "appears to have some chance of success." Hodge, 802 F.2d at 60-61. Even if a claim is not frivolous, it is not substantial if the chances of succeeding on the merits are "highly dubious." Miller v. Pleasure, 296 F.2d 283, ...


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