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Ayers v. Roberts
October 24, 2007
HOWARD AYERS, PLAINTIFF,
T. ROBERTS, A.F. ZON, K. FIEGL-BOCK, AND TURMBO, DEFENDANTS.
The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
Plaintiff has applied to the Court for appointment of counsel pursuant to 28 U.S.C. § 1915(e). 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 Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). The factors to be considered in deciding w hether or not to assign counsel include the following: 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 claims that Defendants retaliated against Plaintiff by filing false misbehavior reports. 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.
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