The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge
The above-captioned matter has been referred to the undersigned by order dated January 30, 2008, for the supervision of pretrial discovery and the hearing and disposition of all non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). (Docket # 17).
Plaintiff Jeffery Goodson has commenced this action pursuant to 42 U.S.C. § 1983 for injuries sustained while incarcerated at the Willard Drug Treatment Campus in 2005. (Docket # 7). Defendants Louise Guzalak and Terry Sprague have filed answers to the complaint denying plaintiff's factual assertions and asserting several affirmative defenses. (Docket ## 15, 16). Currently before this Court are plaintiff's motions to dismiss defendants' answers (Docket # 18) and for the appointment of counsel (Docket # 19). Each motion will be addressed in turn below.
Plaintiff's motion to dismiss defendants' answers does not identify a legal basis for his motion. Rather, plaintiff appears to contest the affirmative defenses raised by defendants and provides additional factual support for the allegations in his complaint. (See Docket # 18). Read liberally, plaintiff's motion may best be considered a motion to strike defendants' affirmative defenses as legally insufficient pursuant to Rule 12 of the Federal Rules of Civil Procedure. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se complaint must be read liberally). That rule permits the court to strike from a pleading "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f).
The Second Circuit has clearly advised, however, that motions to strike an affirmative defense for legal insufficiency are not favored. Salcer v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated on other grounds, 478 U.S. 1015 (1986). "Even when the defense presents a purely legal question, the courts are very reluctant to determine disputed or substantial issues of law on a motion to strike; these questions quite properly are viewed as determinable only after discovery and a hearing on the merits." Id. (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1381, 800-01 (footnotes omitted)). A motion to strike may be granted only when no questions of fact exist, all questions of law are clear and undisputed and there is no set of circumstances under which the affirmative defense could succeed. Saudi Pearl Ins. Co., Ltd. v. M.V. Aditya Khanti, 1997 WL 291834, *6 (S.D.N.Y. 1997) (quoting Hoppe v. G.D. Searle & Co., 779 F. Supp. 1413, 1422 (S.D.N.Y. 1991)).
In the case at bar, the legal issues presented in defendants' affirmative defenses are clearly in dispute, and this Court simply cannot determine that no circumstances exist under which the defenses could succeed. Accordingly, plaintiff's motion to strike defendants' affirmative defenses is denied.
Motion to Appoint Counsel
Plaintiff also moves for the appointment of counsel based upon his assertion that he has attempted to contact several attorneys and has been unable to retain private counsel. (Docket # 19). It is well-settled that there is no constitutional right to appointed counsel in civil cases. Although the Court may appoint counsel to assist indigent litigants pursuant to 28 U.S.C. § 1915(e), see, e.g., Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988), such assignment of counsel is clearly within the judge's discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). The factors to be considered in deciding whether 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 will 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 why appointment of counsel would be more likely to ...