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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


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. 1986).

  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 denied.



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