United States District Court, S.D. New York
April 21, 2004.
LARRY JOHNSON, Petitioner, -against- CHARLES GREINER, SUPERINTENDENT, ET AL., Respondent
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
MEMORANDUM and ORDER
In this action, brought pursuant to 42 U.S.C. § 1983, Larry
Johnson ("Johnson"), who is proceeding pro se, has made an
application that the Court appoint counsel to represent him. Johnson
alleges, through his complaint, that his right to due process was
violated because, among other things, the hearing officer assigned to
preside at a disciplinary hearing, convened after Johnson was charged
with violating the rules and regulations that govern the inmates housed
at the Sing Sing Correctional Facility, participated in the investigation
that led to charges being preferred against Johnson. In addition, Johnson
contends that the hearing officer failed to summon witnesses to the
disciplinary hearing whom Johnson wanted to testify on his behalf.
Johnson maintains that the hearing officer's bias tainted the proceedings
and the decision which resulted in a disciplinary penalty being imposed
Unlike criminal defendants, indigents like the plaintiff filing civil
actions have no constitutional right to counsel. However,
28 U.S.C. § 1915(e)(1) provides that the Court may request an attorney to
represent any person unable to afford counsel. In the case at bar, the
plaintiff made an application to proceed in forma pauperis, which was
granted. Consequently, he is within the class to whom 28 U.S.C. § 1915(e)(1) speaks.
"In deciding whether to appoint counsel, [a] district [court] should
first determine whether the indigent's position seems likely to be of
substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.
1986), cert. denied. 502 U.S. 986, 112 S.Ct. 596 (1991). This
means that it appears to the court "from the face of the pleading"
(Stewart v. McMickens. 677 F. Supp. 226, 228 [S.D.N.Y. 1988]),
that the claim(s) asserted by the plaintiff "may have merit,"
(Vargas v. City of New York, No. 97 Civ. 8426, 1999 WL 486926,
at *2 [S.D.N.Y. July 9, 1999]), or that the plaintiff "appears to have
some chance of success. . . ." Hodge, 802 F.2d at 60-61. Due
process requires that a hearing officer presiding at a prison
disciplinary proceeding be impartial. See Wolff v. McDonnell
418 U.S. 539, 570-71, 94 S.Ct. 2963, 2982 (1974). Thus, from the face of
the pleadings, Johnson's claim appears to have merit. However, it also
appears from the face of the pleadings that the events about which
Johnson complains occurred in 1999. Given that the instant action was not
commenced until in or about June 2003, it is not clear that Johnson
commenced this action within the applicable three-year statute of
limitations. See Cole v. Miraflor. No. 99 Civ. 0977, 2001 WL
138765, at *3 (S.D.N.Y. Feb. 19, 2001).
In this circumstance, appointing an attorney to represent the plaintiff
would not be a prudent use of a scarce resource, the services of pro
bono counsel, since Johnson's ability to maintain the action is
suspect, based on the date the action was commenced. Therefore, Johnson's
application for appointment of counsel is denied.
Dated: New York, New York
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