United States District Court, S.D. New York
May 24, 2004.
HOWARD WALLACE, Plaintiff, -against- NEW YORK CITY, ET AL., Defendants
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, the plaintiff,
Howard Wallace ("Wallace"), has requested that the Court appoint counsel
to represent him. Wallace maintains, inter alia, that his Fourth, Fifth,
Sixth, Eighth and Fourteenth Amendment rights were violated when police
officers, accompanied by his parole officer, effected a ruse to induce
him to exit his apartment so that he might be arrested for a series of
robberies and a homicide. In addition, Wallace alleges that after
effecting his arrest, law enforcement officers searched his apartment
unlawfully and denied him access to legal counsel. Following his arrest,
Wallace was indicted by a grand jury and proceeded to trial where,
ultimately, he was convicted for committing robberies. Many of the
constitutional claims that form the bases of Wallace's amended complaint
are matters that were addressed pretrial during the criminal proceedings
that followed Wallace's indictment. The New York state courts that
entertained many of these claims found them wanting.
When an application is made for the appointment of counsel by an
indigent civil litigant, the following criteria are to be applied by a
court in determining whether to grant the application: (1) the merits of the party's claim; (2) the party's ability to pay for
counsel; (3) the party's effort to obtain a lawyer; (4) the availability
of a lawyer; and (5) the party's ability to gather and use the relevant
facts in the prosecution of the action. See Cooper v. A. Sargenti Co.,
877 F.2d 170, 172 (2d Cir. 1989). With respect to the merits of a
plaintiff's claim(s), it must appear to the court "from the face of the
pleadings," Stewart v. McMickens, 677 F. Supp. 226, 228 (S.D.N.Y. 1988),
that the claim(s) asserted by the plaintiff "may have merit," see 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 v. Police Officers, 802 F.2d at 60-61 (2d Cir.
In the instant case, the plaintiff has affixed to his amended
complaint, as exhibits, among other things, opinions issued by the New
York State Supreme Court, Appellate Division, First Department,
concerning many of the constitutional claims raised by the plaintiff in
the instant action. The determinations reached by that court make the
merits of Wallace's claims suspect and call into question whether the
plaintiff will have "some chance of success" as he moves forward with the
prosecution of this action.
Wallace demonstrated to the Court, through his application to proceed
in forma pauperis, which was granted, and the declaration he submitted to
the Court concerning his limited funds, that he is without the means to
hire counsel to assist him. Wallace has also submitted documentation to
the Court which shows the efforts he has made in attempting to enlist the
assistance of attorneys, on a pro bono basis, to assist him. Those
efforts have been unsuccessful. The Court is mindful that, with respect
to the plaintiff's ability to gather and use relevant facts in
prosecuting the action, two criminal trials have been held, where facts
pertinent to the law enforcement activities engaged in by the individually
named defendants were explored in pre and post-trial proceedings. As a consequence, the relevant facts are well-known to
Wallace, thus obviating the need for him to have counsel investigate and
determine what the relevant facts are.
The Court finds, after considering all of the factors noted above, that
appointing an attorney to represent the plaintiff is not warranted.
Therefore, Wallace's application for the appointment of counsel is
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