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Karvia A. Hamilton, 04a5214 v. M. Erhardt

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


January 10, 2013

KARVIA A. HAMILTON, 04A5214, PLAINTIFF
v.
M. ERHARDT, ET AL, DEFENDANTS

The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

Karvia Hamilton (" Plaintiff" ) is a prisoner in the custody of the New York State Department of Corrections and Community Supervision (" DOCCS" ). Plaintiff maintains that Defendants violated his federal constitutional rights by forcing him to shave his beard, in violation of his Rastafarian religious beliefs. Defendants counter that Plaintiff failed to obtain a " beard permit" in accordance w ith DOCCS' regulations. The Court denied in part Defendant's motion to dismiss Plaintiff's claims, and a trial is scheduled to begin on April 8, 2012. Now before the Court is Plaintiff's application for appointment of counsel. The application is denied.

Plaintiff maintains that appointment of counsel is w arranted for the follow ing reasons: 1) he doesn't " know certain law s governing Federal District Court[s]" ; 2) he w as under the assumption that the Court w ould appoint him counsel once his claims survived the motion to dismiss; 3) he had " difficult[y] articulating [his] damages" during a recent video conference w ith the Court; 4) it " [s]ometimes . . . can be difficult to get inside the facility law library" ; 5) he doesn't understand " most of the legal terms" that w ere used during the aforementioned conference" ; and 6) he doesn't understand the Court's Pre-trial Order.

There is no constitutional right to appointed counsel in civil cases. How ever, 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 w ithin the judge' s discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). The factors to be considered in deciding w hether or not to assign counsel include the follow ing:

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 w ill 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 w hy appointment of counsel w ould 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).

Having considered all of the foregoing factors, the Court finds that appointment of counsel is not w arranted in this case. Plaintiff's claim may have some merit, since it is unclear w hether he complied w ith DOCCS' regulations concerning religious exemptions for beards. How ever, the case is relatively simple and straightforw ard, and Plaintiff has already demonstrated that he is able to present his claims and counter Defendants' arguments. Moreover, the reasons that Plaintiff has offered in support of his application are not persuasive. For example, the Court has used the same Pre-trial Order for years in numerous pro se prisoner cases, and it cannot recall any other instance in w hich an inmate claimed that the Order w as difficult to understand.

Accordingly, Plaintiff's application for appointment of counsel is denied. SO ORDERED.

ENTER:

Charles J. Siragusa

20130110

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