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JOHNSON v. GREINER

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 upon him.

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

  SO ORDERED.

20040421

© 1992-2004 VersusLaw Inc.



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