The opinion of the court was delivered by: BOYLE
By motion filed with the court on January 30, 1997, the pro se plaintiff, Ray O'Neal, requests a new trial pursuant to Rule 59 and to amend the findings of the court, pursuant to Rule 52(b) of the Federal Rules of Civil Procedure, on the ground that he was not represented by an attorney at trial to cross-examine witnesses, "to gather the evidence," and to address issues of law, e.g., "conspiracy law." Affidavit of Ray O'Neal dated January 30, 1997 entitled "Memorandum of Law" in Support of Motion. The defendant, County of Nassau, has submitted no opposition to the motion.
This is a pro se civil rights action which the plaintiff commenced in 1994 against the County of Nassau ("County"), pursuant to 42 U.S.C. §§ 1983, 1985 and 28 U.S.C. § 1343, seeking damages resulting from an alleged conspiracy to interfere with plaintiff's civil rights as an employee in the Nassau County Department of Social Services ("NCDSS").
This case was tried before the undersigned non-jury in July 1996. Pursuant to the Memorandum Opinion and Order, dated January 16, 1997, the court awarded judgment in favor of the County and dismissed the complaint.
The record reflects that the plaintiff's request for appointment of counsel was denied by the undersigned, by order dated January 18, 1997, on the grounds that the plaintiff had failed to meet the applicable criteria for such relief, as set forth in Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986) and Cooper v. A. Sargenti Co., Inc., 877 F.2d 170 (2d Cir. 1989).
The court is obliged to set aside the judgment to prevent the occurrence of an injustice. See Baasch v. Reyer, 827 F. Supp. 940, 942-43 (E.D.N.Y. 1993); Wright, Kane & Miller, Federal Civil Practice and Procedure, § 2805 (2d ed. 1986). Normally, requests for a new trial address issues such as the weight of the evidence, the size of a verdict, or newly discovered evidence affecting the verdict, See Dailey v. Societe Generale, 108 F.3d 451, slip op. at 1922 (2d Cir. March 5, 1997); Wright, Kane & Miller, Federal Civil Practice and Procedure, at §§ 2805-2810. However, the court clearly is not in any way limited to such issues, and therefore addresses the issue of denial of the assistance of counsel at trial.
See Thomas v. Bolger, 1987 U.S. Dist. LEXIS 16816, 1987 WL 26997 (E.D.N.Y. Nov. 25, 1987), aff'd, 847 F.2d 837 (2d Cir. 1998), cert. denied, Thomas v. United States Postal Serv., 488 U.S. 844, 102 L. Ed. 2d 92, 109 S. Ct. 118 (1988).
The court has reviewed the prior order, dated January 16, 1997, denying counsel in light of the ensuing proceedings, including the trial. For the reasons set forth therein, the court continues to adhere to that order and finds that the denial of counsel does not entitle the plaintiff to a new trial or any amendment of the judgment. There is no constitutional or statutory right to counsel in a civil case. Thomas, 1987 WL 26997, at *1, aff'd, 847 F.2d 837 (2d Cir. 1988).
The plaintiff's motion is denied.
Dated: Uniondale, New York
United States Magistrate ...