only with regard to the scope of the agency's search, its indexing and classification procedures, and other related factual matters. See Church of Scientology v. IRS, 137 F.R.D. 201, 202 (D. Mass. 1991); Murphy v. FBI, 490 F. Supp. 1134, 1136 (D.D.C. 1980). Furthermore, curtailment of discovery is particularly appropriate where the court makes an in camera inspection. See Laborers' Int'l Union v. U.S. Dep't of Justice, 249 U.S. App. D.C. 1, 772 F.2d 919, 921 (D.C. Cir. 1984). In the present case, the Mayer Documents have been subjected to two levels of review (i.e., a Vaughn index and an in camera review), and the documents that have been withheld or redacted have been deemed to be proper by this Court. Therefore, no further discovery on these matters is appropriate. Thus, plaintiff's motion for reconsideration of Magistrate Judge Chrein's Memorandum and Order dated February 3, 1995 is denied in its entirety.
II. Defendant's Cross-Motion for Partial Summary Judgment with respect to the Mayer Documents
In evaluating whether to grant a motion for summary judgment in a FOIA action, a district court must review the facts in a light most favorable to the requester of information. See Becker v. IRS, 34 F.3d 398, 405 (7th Cir. 1994). The agency bears the burden to establish that the materials sought have not been improperly withheld. See United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3, 109 S. Ct. 2841, 2847 n.3, 106 L. Ed. 2d 112 (1989). Where, as in the instant case, the plaintiff alleges that the agency has improperly withheld documents through its failure to locate them, the agency's burden is to establish that it conducted an adequate search that failed to produce the requested records. See Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 127 (D.C. Cir. 1982); Katzman v. CIA, 903 F. Supp. 434, 437 (E.D.N.Y. 1995).
In the present case, the FBI is unable to meet its burden of proving that it conducted an adequate search because the FBI's own affidavits suggest that it may have conducted a search, using the wrong file number, for those Mayer Documents located at the New York field office. Specifically, Robert Moran, Special Agent for the FBI, testified in his first affidavit that "New York Field Office ["NYFO"] file 52-12826 is on special locate in the NYFO and will be processed and released to the plaintiff when located." In his second affidavit, however, Moran states that "on February 16, 1994, the NYFO advised that main file 52-12926 has not been located and continues to be on special locate." This variance in the two file numbers referred to by the agent (12826 as opposed to 12926) supports an inference that the FBI has been searching for a different file number than that which pertains to the plaintiff's information request. Therefore, because a genuine issue of fact exists concerning whether the agency has conducted its search using the correct file number, defendant's motion for partial summary judgment must be denied.
The entry of partial summary judgment moreover is precluded because three outstanding documents may exist which have not yet been provided to the plaintiff. Specifically, the plaintiff has demonstrated that a diagram and a photograph of Norman Mayer's wounds were mentioned in a medical report released to the plaintiff. These items, however, were not attached to that report. In addition, a second medical report on Norman Mayer indicates that a toxicology report was conducted on him. Again, the referenced report has not been attached to the document released to the plaintiff. The defendant does not assert that these three documents are exempt from disclosure to the plaintiff; nevertheless, to date, they have not been released. Thus, until defendant releases these documents or demonstrates that they either are exempt from disclosure or cannot be located, defendant is not entitled to partial summary judgment.
III. Plaintiff's Application for Appointment of Counsel
Finally, plaintiff moves the Court for appointment of counsel pursuant to 28 U.S.C. § 1915(d).
Under 28 U.S.C. § 1915(d), a federal district court "may request an attorney to represent [an indigent person] unable to employ counsel." Id. In determining whether to exercise such discretion, a court must first ascertain "whether the indigent's position [is] likely to be of substance." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). If the claim meets this threshold requirement, the court should then consider other criteria. These secondary criteria include " plaintiff's ability to obtain representation independently,  his ability to handle the case without assistance in the light of the required factual investigation,  the complexity of the legal issues, and  the need for expertly conducted cross-examination to test veracity." Id. Noting that volunteer lawyer time is a precious commodity that should not be allocated arbitrarily, the Second Circuit Court of Appeals requires district courts to scrutinize carefully requests for appointment of counsel, and not grant such applications indiscriminately. See id.
The Court has reviewed plaintiff's application and finds that the appointment of counsel is not warranted in this case. Although plaintiff's FOIA action is one of substance, plaintiff has manifestly demonstrated, through his submissions to the Court, that he is quite capable of handling this case without the assistance of counsel. Moreover, because a FOIA action is essentially resolved on the basis of documents, it will not be necessary to cross-examine any witnesses. Further, plaintiff has informed the Court that he is now completing his first year of law school, and consequently has access to legal materials and resources, as well as the input of law professors. Therefore, in light of plaintiff's demonstrated aptitude in litigating this action, plaintiff's application is denied.
For the foregoing reasons, the Court rules as follows:
(1) Plaintiff's motion for reconsideration of Chief Magistrate Judge Chrein's Memorandum and Order dated February 3, 1995 is DENIED in its entirety.
(2) Defendant's cross-motion for partial summary judgment with respect to the Mayer Documents is DENIED pending disclosure, or resolution, of the inconsistencies and omissions addressed by the Court herein.
(3) Plaintiff's application for appointment of counsel is DENIED.
Joanna Seybert, U.S.D.J.
Dated: Uniondale, New York
May 15, 1996