The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
In this action, brought by Prince Pilgrim ("Pilgrim") pro se, pursuant
to 42 U.S.C. § 1983, the plaintiff has requested that the Court appoint
counsel to represent him because he is "going through a strong state of
[d]epression, from dealing with this prison time  and the loss of two
dear friends," Pilgrim explained further that he is "questioning [his]
mental stability on this case, and I am in need of assistance to prepare
for trial. I am just so tired."
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 instant case,
Pilgrim made an application to proceed in forma pauperis, which was
granted. As a result, Pilgrim 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 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," 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.
Pilgrim's claims in this action are that defendant Vaughn, in failing
to render appropriate assistance to Pilgrim in preparing his defense to
disciplinary charges, and defendant Smith, in presiding over the
disciplinary hearing after having investigated the facts leading to the
lodging of disciplinary charges against Pilgrim, violated his right to
due process. Pilgrim also maintains that the penalty imposed upon him
following the disciplinary hearing was excessively harsh and atypical of
the deprivation endured by prisoners as an ordinary incident of prison
In evaluating the instant request for counsel, the Court is mindful
that Pilgrim previously survived a motion to dismiss his complaint.
Therefore, there appears to be merit to the claims he has made in this
action. Through previous submissions made by Pilgrim, the Court has been
given an opportunity to assess whether he has a command of the facts and
is able to present them in a reasonably clear manner. In addition, the
Court has had the opportunity to discuss the case with Pilgrim during
periodic status conferences. Both in his writings and in his oral
presentations to the Court, Pilgrim has demonstrated a firm command of
the facts and the law applicable to the claims he has made in this
action. The Court has every reason to suspect that Pilgrim will continue
to be able to articulate how the relevant law applies to the facts in his
case when the matter proceeds to trial.
Under the circumstances, the Court finds that appointing counsel to
assist Pilgrim does not appear to be warranted. Although Pilgrim has
advised the Court, in connection with the instant application, that he is
suffering from an onset of depression, no medical documentation was submitted in support of that claim. As a result, the verisimilitude
of that claim is unknown. Based on all of the above, the plaintiff's
request that counsel be appointed to assist him, as he continues to
prosecute this action, is denied.
© 1992-2004 VersusLaw ...