The opinion of the court was delivered by: BOYLE
By order dated April 1, 1996 Denis R. Hurley, District Judge, referred to the undersigned the pro se plaintiff's application for appointment of counsel, pursuant to 28 U.S.C. § 1915(d)
This application was filed on February 9, 1996 simultaneously with the filing of the summons and complaint and a motion to proceed in forma pauperis. By order dated February 29, 1996 Judge Hurley granted leave to the plaintiff to proceed in forma pauperis, and pursuant to such authorization arrangements have been made with the United States Marshal's Service to serve the summons and complaint herein.
The action which the pro se plaintiff has filed is identical in most respects to a prior action filed in January 1995. The action is against the plaintiff's former employer, Nassau County Community College (hereinafter referred to as "NCCC") and is filed pursuant to Title VII of the Civil Rights Act of 1964 based on allegations of racial and national origin discrimination.
The court observes that the allegations in paragraphs 6 through 17 in the 1996 action are virtually identical to the allegations of the complaint at paragraphs 18 through 29 in the pending action entitled Nehemiah Rolle v. Nassau County Community College, 924 F. Supp. 5 (DRH and ETB) to which the same district and magistrate judge are assigned.
The apparent reason for commencement of the new action appears to be two-fold: (1) the defendant in the 1995 action asserted as an affirmative defense (Tenth Affirmative Defense) that the pro se plaintiff had failed to exhaust his administrative remedies in that 180 days had not transpired from the filing of the EEOC complaint and the EEOC had not issued a right to sue letter; and (2) the 1996 complaint, in addition to the defendant, NCCC, adds six persons as individual defendants, each of whom is alleged to have participated in the series of events that give rise to plaintiff's termination as an employee at NCCC. Four of the individual defendants are officials at [ILLEGIBLE WORD] and two are Nassau County officials.
Prior Requests For Counsel
The court notes that the pro se plaintiff on two prior occasions, in the 1995 case, requested that Judge Hurley appoint counsel. The first application was made at the very outset of the litigation before joinder of issue. The application was denied by Judge Hurley with leave to renew. See Memorandum and Order dated May 10, 1995. In denying relief, the district judge initially noted the difficulty of assessing the merits of the plaintiff's case at such a preliminary stage. See Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). The court, however, assumed arguendo that merit existed and denied the application (Memorandum and Order, dated May 10, 1995, at 3) on the ground that consideration of the "secondary criteria"
outlined in [ILLEGIBLE WORD] did not warrant the requested relief "at this time." Id.
The plaintiff renewed his request for appointment of counsel on September 14, 1995. By order dated September 15, 1995, Judge Hurley denied the application. The court noted in the Memorandum and Order, dated September 15, 1995, that issue had only recently been joined (in June 1995) and that it was still difficult to evaluate the merit of plaintiff's case. The district court stated that, assuming that merit exists, the court was still "unconvinced" that plaintiff had satisfied the "secondary criteria" for appointment of counsel. Id. at 2. More specifically, Judge Hurley noted since the filing of an Amended Complaint the plaintiff had "demonstrated ... his ability to effectively present his claims without the assistance of counsel." Id. Additionally, the court noted that there was no reason to believe that the case involved "substantial factual investigation" or that plaintiff lacked the "ability to investigate the crucial facts" (quoting from Hodge, 802 F.2d at 61) in the case. Lastly, the court noted that there was no "special reason" set forth that the appointment of counsel "would more likely lead to a just determination of his claims." Memorandum and Order dated September 15, 1995 at 3.
Judge Hurley nonetheless again left the door open to appointment of counsel as the litigation progressed:
If, as the case develops, it appears that justice would be better served by the appointment of counsel, the Court will again reconsider Plaintiff's request.
The record reflects one further effort by the pro se plaintiff to obtain the appointment of counsel. On November 15, 1995 plaintiff requested an extension of time to file a notice of appeal from the order dated September 15, 1995, denying appointment of counsel. Judge Hurley treated the application as a request pursuant to 28 U.S.C. § 1291(b) for certification to take an interlocutory appeal. The district court denied the motion, by Memorandum and Order dated January 18, 1996, on the ...