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McMILLON v. MULHERN
June 27, 2005.
JOHNNIE W. McMILLON, Plaintiff,
MATTHEW MULHERN, and STEVEN SIERK, 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 subjecting him to excessive use of
force at the time of his arrest. (Docket # 1). Currently before this Court
is plaintiff's motion for the appointment of counsel. (Docket # 30). 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
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
subjected him to excessive force at the time of his arrest.
(Docket # 1). Through the current motion, plaintiff requests the
assignment of counsel alleging only that he is unable to obtain
an attorney on his own. (Docket # 30).
Pursuant to the standards promulgated by Hendricks,
114 F.3d at 392, and Hodge, 802 F.2d at 58, it does not appear that
counsel will provide substantial assistance in developing
plaintiff's argument at this time. Indeed, the legal issues in
this case do not appear to be complex, and plaintiff appears fully able to conduct any
necessary 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 # 30) 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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