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McDowell v. Cleveland

December 14, 2006

REUBEN MCDOWELL, PLAINTIFF,
v.
LARRY CLEVELAND, SHERIFF, WARREN COUNTY SHERIFF'S DEPARTMENT; DANIEL STEWART, COMMISSION OF CORRECTIONS, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe, United States District Judge

DECISION and ORDER

A. Background

Presently before the Court is an amended complaint filed by plaintiff Reuben McDowell. Dkt. No. 9. This amended complaint was submitted by McDowell in compliance with the Order issued by this Court on October 30, 2006. Dkt. No. 8. Also before the Court is a Motion for Appointment of Counsel submitted by McDowell. Dkt. No. 10.

The October Order advised McDowell that he must demonstrate an "actual injury" in order to establish a violation of the right of access to the courts. Dkt. No. 8 at 5. McDowell was also advised that he must assert allegations of wrongful conduct as to each named defendant. Id. The October Order further cautioned McDowell that his amended complaint must contain specific allegations of fact rather than mere general conclusions. Id. at 7.

B. The Amended Complaint

In his amended complaint, McDowell alleges, inter alia, that he was discriminated against, denied due process during the course of his disciplinary hearing and in connection with being placed in administrative segregation, and denied access to the law library. Dkt. No. 9.

McDowell continues to claim that he was denied access to the law library. McDowell has not, however, alleged that a legal action that he sought to pursue was materially prejudiced by the alleged deficiencies of the law library at the jail. In fact, McDowell has not alleged that he has suffered any injury relative to the alleged interferences with his access to the courts. Accordingly, McDowell's claims of denial of access to the law library are legally insufficient to state a claim under Section 1983 and must be dismissed.

Along with previously named defendant "Daniel L. Stewart," McDowell names four new defendants in his amended complaint: "Michael Gates," "Lt. VanWinkle," "C. Hall," and "M. Harpp." Dkt. No. 9 at 1. Previously named defendant "Larry Cleveland" is not named in McDowell's amended complaint and is therefore dismissed as a defendant in this action.

C. Motion for Appointment of Counsel

Presently before this Court is a motion by plaintiff for appointment of counsel. Dkt. No. 10. In Terminate Control Corp. v. Horowitz, 28 F.3d 1335 (2d Cir. 1994), the Second Circuit reiterated the factors that a court must consider in ruling upon such a motion. In deciding whether to appoint counsel, the court should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider a number of other factors in making its determination. Terminate Control Corp., 28 F.3d at 1341 (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)).

However, prior to evaluating a request for appointment of counsel, a party must first demonstrate that he is unable to obtain counsel through the private sector or public interest firms. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 173-74 (2d Cir. 1989) (quoting Hodge, 802 F.2d at 61). Such a showing has not yet been made in this action.

In light of the foregoing, McDowell is directed to attempt to obtain counsel from the public and private sector.

WHEREFORE, it is hereby

ORDERED, that McDowell's fourth cause of action is dismissed from this ...


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