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PILGRIM v. LUTHER

United States District Court, S.D. New York


May 24, 2004.

PRINCE PILGRIM, Plaintiff, -against- C.O. D. LUTHER, ET AL., Defendants

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

MEMORANDUM and ORDER

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 life.

  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.

  SO ORDERED.

20040524

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