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Mike Wilson 95-A-0866 v. Lt. Paul A. Hendel

October 3, 2011

MIKE WILSON 95-A-0866, PLAINTIFF,
v.
LT. PAUL A. HENDEL, SGT RAYMAND R. HAUCK,
C.O. GARY J. PIESCZYNSKI, C.O. DALE SPENCER, C.O. CHARLES T. BREW, C.O. JAMES W. HOLTZ, AND C.O. ROBERT HANSEN, DEFENDANTS.



The opinion of the court was delivered by: Siragusa, J.

DECISION AND ORDER

INTRODUCTION

Plaintiff alleged in a pro se civil rights complaint that defendants assaulted him, failed to stop or prevent the assault, or failed to provide adequate medical attention, all contrary to his Eighth Amendment constitutional right to be free from cruel and unusual punishment. The case is now before the Court on Plaintiff's motion for appointment of pro bono counsel. For the reasons stated below, the application is denied and the case is set down for a jury trial.

PROCEDURAL BACKGROUND

The Court entered a Decision and Order denying summary judgment on April 6, 2005, and determined the case was ready for trial. However, upon proper application by the defense, the Court stayed the case as a result of the active military service of a key witness, Correction Officer Dale Spencer ("Spencer"). 50 App. U.S.C.A. § 522(b) (2008). The stay was lifted on July 1, 2008, and on September 12, 2008, Defendants' counsel moved for a second stay based, again, on Spencer's active military service. (Doc. 77.) On March 27, 2009, counsel filed a declaration to which he attached a letter from Spencer's commanding officer, Colonel Leonard C. Hawkins. Colonel Hawkins asked that trial be postponed until after May 2009 to allow Master Sergeant Spencer to complete his tour of duty. (Doc. No. 84, Ex. A.)

Before the Court ruled on the motion for a stay, Plaintiff requested on April 1, 2009, an extension to file an application for the appointment of counsel. (Doc. No. 85.) The Honorable Jonathan W. Feldman, U.S. Magistrate Judge, to whom this case had been referred for pretrial nondispositive matters, granted Plaintiff's application and set a deadline of April 23, 2009. (Doc. No. 86.) Plaintiff filed his motion on April 15, and on September 25, filed another motion, seeking a hearing, which Judge Feldman granted. (Doc. No. 89.) Judge Feldman held a telephone conference on October 29, 2009, and on November 20, 2009, issued a Decision and Order denying Plaintiff's application to appoint counsel, finding no reason to depart from the undersigned's earlier decision (Doc. No. 66) to deny the appointment of counsel. (Doc. No. 92.)

On November 30, 2009, the undersigned held a pretrial conference by video connection and, based on Plaintiff's arguments at the conference, set January 29, 2010, for Plaintiff to again request appointment of counsel and to explain the change in circumstances which entitled him to counsel. The Court issued a detailed order to Plaintiff which included the following language:

Plaintiff represented that he is unable to use a law library where he is currently housed. Accordingly, the Court specifically advises Plaintiff that although there is no constitutional right to appointed counsel in civil cases, 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). In that regard, assignment of counsel in this matter is clearly within the judge's discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1986). 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). The Court must consider the issue of appointment carefully, of course, because "every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). (Doc. No. 96.) On December 9, ...


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