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Marcos Nunez v. T. Conway

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


March 26, 2012

MARCOS NUNEZ,
PETITIONER,
v.
T. CONWAY,
RESPONDENT.

The opinion of the court was delivered by: John G. Koeltl, District Judge:

MEMORANDUM OPINION AND ORDER

The Court has received the attached correspondence from the petitioner, which it sends to the parties. The Order to which the petitioner appears to be referring directed the Government, not the petitioner, to send its opposition papers to the Court. The petitioner does not need to take any further action at this time.

The petitioner also requests that the Court appoint him counsel. However, from the papers provided, the Court cannot determine whether the necessary showing for appointment of counsel has been met. The Court of Appeals for the Second Circuit has articulated factors that should guide the Court's discretion to appoint counsel to represent an indigent civil litigant under 28 U.S.C. § 1915. See Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986); Jackson v. Moscicki, No. 99 Civ. 2427 (JGK), 2000 WL 511642, at *4 (S.D.N.Y. Apr. 27, 2000). For the Court to order the appointment of counsel, the petitioner must, as a threshold matter, demonstrate that his claim has substance or a likelihood of success on the merits. See Hodge, 802 F.2d at 60-61. Only then can the Court consider the other factors appropriate to determination of whether counsel should be appointed: "plaintiff's ability to obtain representation independently, and his ability to handle the case without assistance in the light of the required factual investigation, the complexity of the legal issues, and the need for expertly conducted cross-examination to test veracity." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989). The plaintiff has not yet made such a showing. The plaintiff's application for the Court to appoint counsel is therefore denied without prejudice for failure to make the required showing at this time.

  The SO ORDERED.

20120326

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