United States District Court, S.D. New York
April 5, 2004.
ANTHONY T. MACKEY, Plaintiff, -against- DICAPRIO, et al., Defendants
The opinion of the court was delivered by: RONALD ELLIS, Magistrate Judge
OPINION & ORDER
Pro se plaintiff Anthony T. Mackey ("Mackey"), currently
incarcerated at Bare Hill Correctional Facility, brought this action on
March 5, 2002, pursuant to 42 U.S.C. § 1983. On September 26, 2003,
Mackey filed for appointment of counsel pursuant to
28 U.S.C. § 1915(e).
The complaint filed under 42 U.S.C. § 1983 apparently alleges that
on September 16, 2001, co-defendants Police Officers DiCaprio # 803,
Lawrence # 835, and Potanovic; and the Yonkers Police Department violated
Mackey's rights under the Eighth Amendment and subjected him to cruel and
unusual punishment and/or used excessive force when they assaulted him
after he complied with their request "to get on the ground" during an
arrest. See Complaint ("Compl.") at 3-4. Mackey asserts that
while the co-defendants were effectuating his arrest, DiCaprio savagely
beat him with a hard object, and Lawrence simultaneously began kicking
him. Id. As a result of DiCaprio and Lawrence's actions,
Mackey alleges that he sustained injuries, including permanent scarring
to his head, the loss of a tooth, and recurring headaches. Id.
at 6. After the assault, Mackey claims that Lawrence handcuffed him and
stood on his knee while questioning him. Id. at 4. Lawrence's
actions resulted in tendon damage to Mackey's left knee. Id.
at 6. Mackey also alleges that a police dog was ordered by one of the
co-defendants to bite him, which resulted in a loss of "ability to
control" one of the fingers on his left hand. Id. at 5.
Finally, Mackey claims that the defendants dragged him up an alley
causing him to lose skin on his head and upper back. Id. at 5.
"Unlike criminal defendants, prisoners and indigents filing civil
actions have no constitutional right to counsel." Barzey v.
Daley. 2000 U.S. Dist. LEXIS 9510, at * 2 (S.D.N.Y. July 10, 2000).
The authority to appoint counsel for prisoners in civil cases derives
from 28 U.S.C. § 1915(e). This statute provides that the court may
request an attorney to represent any person unable to afford counsel, but
that it shall dismiss the case if the allegation of poverty is untrue or
the action is frivolous or malicious. See 28 U.S.C. § 1915(e)(2004).
If the court finds that a plaintiff cannot afford counsel,
it must then examine the merits of the case and determine "whether the
indigenes position seems likely to be of substance." See
Hendricks v. Coughlin, 114 F.3d 390,392 (2d Cir. 1997)
(quoting Hodge v. Police Officers, 802 F.2d 58,61-62 (2d Cir.
1986)). Once this threshold requirement is met, there are several factors
the court should consider in deciding to appoint counsel: (1) Mackey's
ability to investigate the crucial facts; (2) whether conflicting
evidence implicating the need for cross-examination will be the major
proof presented to the factfinder; (3) Mackey's ability to present the
case; (4) the complexity of the legal issues; and (5) any special reason
in the case why appointment of counsel would be more likely to lead to a
just determination. See id. at 392. As the Second
Circuit has indicated, this is not to say that all or any of the factors must be controlling in a
particular case. Hodge, 802 F.2d at 61. "Each case must be
decided on its own facts." Covington v. Kid, 1998 U.S. Dist.
LEXIS 12222, at *3 (S.D.N.Y. Aug. 5, 1998).
In this case, Mackey has made the requisite showing that he is unable
to pay for counsel because of his request to proceed in forma pauper
is, which was granted on March 1, 2002. While Mackey does not have
to demonstrate that his claims would survive a motion to dismiss or a
motion for summary judgment, the court must be satisfied from the face
of the pleadings that plaintiff has made a threshold showing of merit.
See Allen v. Sakellardis, 2003 U.S. Dist. LEXIS
17010, at *4 (S.D.N.Y. Sept 26, 2003). The merits of plaintiff's case are
viewed by this Court with greater generosity because, as a pro
se litigant, he may have had difficulty in fully developing his
allegations. See Cooper v. A. Sargenti Co., Inc.,
877 F.2d 170,174 (2d Cir. 1989). Although Mackey fails to clearly state
a violation of his rights under the Eighth Amendment, his claim is not
entirely without merit. He pleads that, as a result of being "savagely
beaten by the Yonkers Police Department and attacked and bitten by a dog
that was with the police," he has suffered the following injuries: (1)
the loss of ability to control one of the fingers on his left hand; (2)
the loss of his front tooth; (3) headaches; (4) permanent scars on his
head; (5) tendon damage to his left knee; and (6) recurring nightmares.
See Compl. at 3-7. These allegations at least appear to have
some chance of success. Thus, the Court finds that Mackey has satisfied
the requirement that he made a threshold showing of merit.
In examining the factors set out in Hodge and
Hendricks, the Court notes that Mackey fails to state a reason
why appointment of counsel would increase the likelihood of a just
determination in this case, other than his general statement of "no
experience in law or the matter at hand." Application for Appointment of Counsel at 1. Mackey's
submissions, however, have been presented with care and diligence. He has
not demonstrated any marked difficulties in presenting his case and there
is no indication that he lacks the ability to do so. Furthermore, it
appears that this case does not present novel or complex legal issues.
After careful review of Mackey's application, in light of the foregoing
and considering the factors set out in Hodge and
Hendricks, the Court finds that appointment of counsel is not
warranted in this case. The motion is DENIED without prejudice.
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