The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
In the above-captioned action, brought pursuant to
42 U.S.C. § 1983, Kahene Peterkin ("Peterkin") contends that while he was in
the custody of the New York City Department of Corrections, the
defendants violated his civil rights by employing excessive force
against him resulting in Peterkin experiencing scarring, swelling
and pain at his left eye and his right ankle. Thereafter,
according to Peterkin, the defendants exhibited deliberate
indifference to his medical needs by failing to treat the
conditions described above.
Previously, Peterkin requested that the Court appoint counsel
to assist him in prosecuting this action. That request was denied
through an order issued by the Court on August 26, 2005. At that
time, it appeared, from a review of the docket sheet maintained
by the Clerk of Court for this action, that Peterkin had failed
to comply with a June 6, 2005 order issued by the assigned
district judge directing Peterkin to effect service of the
summons and complaint upon the defendants. Peterkin has now
submitted evidence to the Court that he requested the United
States Marshals Service to effect service of the summons and
complaint for him and that it did so after the date by which the assigned district judge had directed
that service be effected. As a consequence, Peterkin has
requested that the Court reconsider its determination to deny his
application for appointed counsel.
The Court has determined that, under the circumstances, it
would be reasonable and appropriate to revisit Peterkin's
application for court-appointed counsel. That application is
addressed below.
Unlike criminal defendants, prisoners, such as plaintiff, and
indigents 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. Plaintiff made an application to proceed in forma
pauperis, which was granted. Therefore, he 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." See 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," (see 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 "plaintiff appears to have some chance of
success. . . ." See Hodge, 802 F.2d at 60-61.
In the instant case, the plaintiff has alleged that his
constitutional rights were violated by an unwarranted attack upon
him by a corrections officer who was duty-bound to ensure the
plaintiff's security and safety. The plaintiff contends that, as
a result of the conduct of corrections personnel, he sustained injuries to his eye and ankle
which caused him pain and swelling. In his complaint, the
plaintiff also alleges that he was deprived of appropriate
medical treatment. Furthermore, Peterkin notes in his complaint
that he employed, unsuccessfully, the administrative procedure
made available by the corrections agency to address the issues
that are the subject of this action.
While it appears from the face of the plaintiff's complaint
that his claims may have merit, the Court has considered: 1) the
plaintiff's ability to investigate the facts pertinent to this
action; 2) whether conflicting evidence implicating the need for
cross-examination will be the major proof presented to the
fact-finder; 3) the plaintiff's ability to present the case; 4)
the complexity of the legal issues; and 5) any special reason in
this case why appointment of counsel would be more likely to lead
to a just determination. See Hodge, 802 F.2d at 61-62. The
plaintiff's complaint is detailed in nature. It describes the
events that led to an alleged assault upon the plaintiff.
Furthermore, it identifies the persons whom the plaintiff
contends participated in the assault. In like manner, the
complaint sets forth the medical treatment the plaintiff received
and his contention that his treatment was inadequate. The details
contained in the complaint suggest that investigating the claims
made in the instant action will not be a complicated exercise for
the plaintiff.
While cross-examination may play a significant role in the
trial of this action, the care with which the plaintiff has
explained the facts and circumstances surrounding the assault he
alleges occurred, and the degree of medical attention he
received, indicates to the Court that the plaintiff will be able
to frame questions to elicit responses pertinent to the
prosecution of the action. In addition, the legal issues that
confront the parties in this action are not complex. They involve the degree of force, if any, employed upon Peterkin and
the quantity and quality of the medical care afforded to him. The
plaintiff has demonstrated an understanding of the legal issues
that confront the parties in this case, as evidenced by his
complaint.
Under the circumstances, having considered the Hodge factors
referenced above, the Court finds that the appointment of counsel
is not warranted in order for a just determination to be reached
in this action.
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