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Cole v. Fisher

January 7, 2010

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



The opinion of the court was delivered by: Hon. Hugh B. Scott

Order

Before the Court are the plaintiff's motion for the appointment of counsel (Docket No. 101) and the plaintiff's motion for an extension of time to respond to the pending motions (Docket No. 104).

Motion for Appointment of Counsel

The plaintiff has applied to the Court for appointment of counsel pursuant to 28 U.S.C. § 1915(e). (Docket No. 101). There is no constitutional right to appointed counsel in civil cases. However, 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 within the judge's discretion. In re MartinTrigona, 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 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); Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.2001); Abdur-Raqiyb v. Erie County Medical Center, 2006 WL 1800710, at *1 (W.D.N.Y.,2006).

The Court has reviewed the facts presented herein in light of the factors required by law as discussed above. The record reflects that the legal issues presented are not unduly complex and that the plaintiff can adequately prosecute his claim pro se. Based on this review, plaintiff's motion for appointment of counsel is denied without prejudice at this time. It is the plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C. § 1654.

Motion for Extension of Time to Respond

The various defendants have moved for summary judgment in this matter (Docket No. 94 and 95). By Order dated December 28, 2009, the Court directed that the plaintiff respond to the motions by January 22, 2010. Although the plaintiff was under the mistaken impression that his responses were due on January 7, 2010, the plaintiff now seeks additional time to respond. (Docket No. 104). The plaintiff shall respond to the motion by February 12, 2010. The defendants may file a reply, if any, by February 26, 2010. The motion will be deemed submitted without oral argument unless otherwise determined upon review of the papers.

The plaintiff is reminded that the motions seek to dismiss all or a portion of the plaintiff's complaint.

IF THE PLAINTIFF FAILS TO RESPOND TO THE MOTION, THE CLAIMS AGAINST THESE DEFENDANTS MAY BE DISMISSED FOR FAILURE TO PROSECUTE.

For further instructions please see the attached notice pursuant to Irby v. New York City Transit Authority, 262 F 3d 412 (2d Cr 2001).

So Ordered.

Hugh B. Scott United States Magistrate Judge Western District of New York

RULE 56 MOTIONS FOR SUMMARY JUDGMENT - ...


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