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Ronald Davidson v. Wesley Canfield

December 4, 2012

RONALD DAVIDSON, PLAINTIFF,
v.
WESLEY CANFIELD, M.D., DEFENDANT.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the undersigned by the Hon. William M. Skretny, pursuant to 28 U.S.C. § 636(b)(1)(A), for all pretrial matters. Dkt. #18.

Plaintiff, Ronald Davidson, filed this pro se action pursuant to 42 U.S.C. § 1983, alleging that between June and December 24, 2004, while he was incarcerated at the Elmira Correctional Facility ("Elmira"), Wesley Canfield, M.D., Facility Health Services Director at Elmira, arranged for plaintiff's transfer to Shawangunk Correctional Facility ("Shawangunk"), so as to interfere with scheduled foot surgery and urological surgery, in retaliation for plaintiff's filing of Davidson v. Desai, 03-CV-121. Dkt. ##1 & 5.

Currently before the Court is plaintiff's motion seeking: the appointment of counsel; "[a]llocation of court funds to retain a forensic software expert if counsel isn't appointed at this time;" and, "permitting the sanction of [sic] adverse inference at trial in the event that electronically stored information that upon information and belief is in possession of the defendants [sic] or should have been isn't recovered and supplied to plaintiff sufficiently in advance of jury trial." Dkt. #60.

Appointment of Counsel

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 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 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. Inc., 877 F.2d 170, 172 (2d Cir. 1989). Therefore, the Court must first look to the "likelihood of merit" of the underlying dispute, Hendricks, 114 F.3d at 392; Cooper, 877 F.2d at 174, and "even though a claim may not be characterized as frivolous, counsel should not be appointed in a case where the merits of the . . . claim are thin and his chances of prevailing are therefore poor." Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (denying counsel on appeal where petitioner's appeal was not frivolous but nevertheless appeared to have little merit).

The Court has reviewed the facts presented herein in light of the factors required by law. In support of his motion for appointment of counsel, plaintiff states that "it is essential that counsel be assigned to me in order to aggressively seek out and obtain all of my demanded documents and information needed for me to make my case in chief at trial." Dkt. #60, p.2. In addition, plaintiff argues that the appointment of counsel is necessary so that he can defend against the motion for summary judgment he anticipates defendant Dr. Canfield will file. Moreover, plaintiff asserts that, additionally, another crucial reason for appointment of counsel is that said counsel would be able to hire a forensic software expert who can examine the DOCCS's data base and detail the steps that DOCCS could take to obtain the important ...


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