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ABDUR-RAQIYB v. ERIE COUNTY MEDICAL CENTER
June 20, 2005.
HASAN ALI ABDUR-RAQIYB, Plaintiff,
ERIE COUNTY MEDICAL CENTER (ECMC), PAMELA DIANE REED, M.D., WYOMING COUNTY COMMUNITY HOSPITAL, TWIN CITY AMBULANCE SERVICES, Defendants.
The opinion of the court was delivered by: MARIAN W. PAYSON, Magistrate Judge
Plaintiff in the above-captioned matter has filed, a pro se
Complaint pursuant to 42 U.S.C § 1983, alleging that defendants
violated his constitutional rights by acting deliberately indifferent to his
medical needs and by violating his right to free exercise of religion.
(Docket # 1). Currently before this Court is plaintiff's motion for the
appointment of counsel. (Docket # 44). For the following reasons,
plaintiff's motion is denied.
It is well settled that there is no constitutional right to
appointed counsel in civil cases. However, under
28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent
litigants. See, e.g., Sears, Roebuck and Co. v. Charles W. Sears
Real Estate, Inc., 865 F.2d 22
, 23 (2d Cir. 1988). Such
assignment of counsel is clearly within the judge's discretion.
In re Martin-Trigona, 737 F.2d 1254
(2d Cir. 1984). The factors
to be considered in deciding whether or not to assign counsel
include the following:
1. Whether the indigent's claims seem likely to be of
substance; 2. Whether the indigent is able to investigate the
crucial facts concerning his claim;
3. Whether conflicting evidence implicating the need
for cross-examination will be the major proof
presented to the fact finder;
4. Whether the legal issues involved are complex; and
5. Whether there are any special reasons why
appointment of counsel would be more likely to lead
to a just determination.
Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see
also Hodge v. Police Officers, 802 F.2d 58
(2d Cir. 1986).
The Court must consider the issue of appointment carefully, of
course, because "every assignment of a volunteer lawyer to an
undeserving client deprives society of a volunteer lawyer
available for a deserving cause." Cooper v. A. Sargenti Co.,
Inc., 877 F.2d 170, 172 (2d Cir. 1989). Therefore, the Court
must first look to the "likelihood of merit" of the underlying
dispute, Hendricks, 114 F.3d at 392; Cooper, 877 F.2d at 174,
and "even though a claim may not be characterized as frivolous,
counsel should not be appointed in a case where the merits of the
. . . claim are thin and his chances of prevailing are therefore
poor." Carmona v. United States Bureau of Prisons,
243 F.3d 629, 632 (2d Cir. 2001) (denying counsel on appeal where
petitioner's appeal was not frivolous but nevertheless appeared
to have little merit).
The Court has reviewed the facts presented herein in light of
the factors required by law. Plaintiff alleges that defendants
actions were deliberately indifferent to his medical needs and
were in violation of his right to free exercise of religion and
to be free from cruel and unusual punishment. (Docket # 1).
Through the current motion, plaintiff requests the assignment of
counsel alleging that: (1) he is in bad health; (2) the issues
involved in this matter are complex; (3) the prison law library is inadequate for case
preparation; and (4) he is unable to afford counsel. (Docket #
Pursuant to the standards promulgated by Hendricks,
114 F.3d at 392, and Hodge, 802 F.2d at 58, I find that the appointment
of counsel is not necessary at this time. Indeed, plaintiff has
thus far failed to establish that the case is "likely to be of
substance." Hendricks, 114 F.3d at 392. Moreover, the legal
issues in this case do not appear to be complex, and plaintiff
appears fully able to conduct his own investigation. Further,
plaintiff has not demonstrated that the appointment of counsel
would be more likely to lead to a just determination in this
matter. Thus, plaintiff's motion for appointment of counsel
(Docket # 44) is DENIED without prejudice at this time. It is
plaintiff's responsibility to retain an attorney or press forward
with this lawsuit pro se. 28 U.S.C. § 1654.
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