The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
Henry J. James ("James") brought the above-captioned action
pursuant to 42 U.S.C. § 1983. Through his complaint, James
contends that, while he was held at the Greenhaven Correctional
Facility, the defendants violated his civil rights by employing
excessive force against him resulting in James' receiving,
inter alia, injuries to his face, head and right knee.
Thereafter, according to James, the defendants exhibited
deliberate indifference to his medical needs by failing to treat
the above-noted injuries timely and appropriately. James has
requested that the Court appoint counsel to assist him in
prosecuting this action. 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 unwarranted attacks upon
him by corrections officers and that their supervisors, who were
duty-bound to ensure the plaintiff's security and safety failed
to protect him against the attacks. The plaintiff contends that,
as a result of the conduct of corrections personnel, he sustained
injuries to, inter alia, his head, face and right knee which
caused him pain and impaired his ability to climb stairs to enter
his assigned sleeping quarters. In his complaint, the plaintiff
also alleges that he was deprived of appropriate medical
treatment. Furthermore, James notes in his complaint that he
employed, unsuccessfully, the administrative procedures made
available by the state 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 the alleged assaults upon the
plaintiff. Furthermore, it identifies the persons whom the
plaintiff contends participated in the assaults. 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 assaults
the 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 James 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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