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Cole v. Fischer

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


May 4, 2009

RONNIE COLE, PLAINTIFF,
v.
BRIAN FISCHER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Hugh B. Scott United States Magistrate Judge

Hon. Hugh B. Scott

Order

(CONSENT)

Plaintiff in this action again has applied to the Court for appointment of counsel pursuant to 28 U.S.C. § 1915(e) (Docket No. 46; cf. Docket Nos. 41 (plaintiff's initial application), 42 (Order denying application)). In the interim, the parties consented to proceed before the undersigned as Magistrate Judge (Docket No. 43).

Under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants. 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 within the judge's discretion. See In re MartinTrigona, 737 F.2d 1254 (2d Cir. 1986). The factors to be considered in deciding whether or not to assign counsel are set forth by the Second Circuit in Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986). Counsel may be appointed in cases filed by indigent plaintiffs where it appears that such counsel will provide substantial assistance in developing petitioner's arguments, the appointment will otherwise serve the interests of justice, and where the litigant has made "a threshold showing of some likelihood of merit." Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989).

The Court has reviewed the additional facts and circumstances presented herein, namely plaintiff's unsuccessful attempts to retain counsel and plaintiff's pending motion for summary judgment (Docket No. 44), in light of the factors required by law. Based on this review, plaintiff's motion for appointment of counsel is DENIED WITHOUT PREJUDICE AT THIS TIME.

It remains the plaintiff's responsibility to retain his own attorney or to press forward with his lawsuit pro se. 28 U.S.C. § 1654.

So Ordered.

Buffalo, New York

20090504

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