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Harrison v. Querns

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


June 14, 2007

EDWARD HARRISON, PLAINTIFF,
v.
LT. QUERNS, DEFENDANT.

The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

ORDER

Plaintiff has applied to the Court for appointment of counsel pursuant to 28 U.S.C. § 1915(e) (Doc. No. 20). There is no constitutional right to appointed counsel in civil cases. How ever, under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants. See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). Assignment of counsel in this matter is clearly w ithin the judge' s discretion. In re MartinTrigona, 737 F.2d 1254 (2d Cir. 1984). The factors to be considered in deciding w hether or not to assign counsel include the follow ing:

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 w ill 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 w hy appointment of counsel w ould 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 law yer to an undeserving client deprives society of a volunteer law yer available for a deserving cause." Cooper v. A. Sargenti Co., 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 w here 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 w here petitioner' s appeal w as not frivolous but nevertheless appeared to have little merit).

The Court has review ed the facts presented herein in light of the factors required by law . Plaintiff alleges that his due process rights w ere violated by Defendant at a disciplinary hearing. Based on this review , plaintiff' s motion for appointment of counsel is denied w ithout prejudice at this time. It is the plaintiff' s responsibility to retain an attorney or press forw ard w ith this law suit pro se. 28 U.S.C. § 1654. Nevertheless, in order to assist plaintiff in pursuing this case pro se, the Clerk of the Court is directed to send plaintiff the Court's booklet entitled Pro Se Litigation Guidelines.

SO ORDERED.

20070614

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