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SHIRE v. ALVES
May 7, 1998
IVORY SHIRE, Plaintiff, -vs- DR. ALVES, ET AL., Defendants.
The opinion of the court was delivered by: SIRAGUSA
SIRAGUSA, District Judge.
This is an action in which the plaintiff, currently a prisoner at Green Haven Correctional Facility, is suing various prison medical personnel at Southport Correctional Facility for violation of his Eighth Amendment rights pursuant to 42 U.S.C. § 1983. Now before the Court are two motions by the plaintiff seeking the appointment of counsel. For the reasons that follow, these motions are denied.
The plaintiff alleges that he suffers from a chronic skin allergy, and that while he was incarcerated at Southport Correctional Facility, the defendant failed to provide him with the proper medical care. It appears that the plaintiff was receiving medication for this allergy, but he believes that it was not the correct medication. Thereafter, he alleges that a nurse stopped providing him with any medication. He states that "they are failing to provide me with sufficient care, causing me to suffer." However, in response to one of the plaintiff's grievances, the grievance committee (I.G.R.C.) stated that the plaintiff had refused to accept his medication on three separate occasions. The plaintiff admitted that he had refused his medication on one occasion because he believed it was not the correct medication.
By Order dated August 7, 1996, the plaintiff was granted leave to proceed in forma pauperis. The Honorable Michael A. Telesca, United States District Court Judge, denied the plaintiff's first application for appointment of counsel by Order dated April 11, 1997. On March 26, 1998 and April 16, 1998, respectively, the plaintiff again moved for appointment of counsel. As evidence of his recent attempts to retain counsel, the plaintiff has submitted letters from six legal service providers who have declined to represent him.
Pursuant to 28 U.S.C. § 1915(e), the Court may appoint counsel to represent an indigent party. However, the decision whether or not to assign counsel is within the Court's discretion. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The factors which the Court must consider in deciding whether or not to appoint counsel are as follows:
1. Whether the indigent's claims seem likely to be of substance;
2. Whether the indigent is able to investigate the crucial facts regarding his claim;
3. Whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder;
4. Whether the indigent is able to present his case;
5. Whether the legal issues involved are complex; and
6. Whether there are any special reasons why appointment of counsel would be more likely than not to ...
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