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Pagan v. Sheppard

United States District Court, Second Circuit

October 3, 2013

MIGUEL PAGAN, Plaintiff,
v.
CHIEF SHEPPARD, et al., Defendants.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

Pro se plaintiff Miguel Pagan ("Pagan") has filed a complaint in the above-captioned matter asserting constitutional violations pursuant to 42 U.S.C. § 1983 and various state law claims. (Docket # 1). Pagan's claims arise out of his arrest. On March 22, 2013, Pagan filed a motion seeking appointment of counsel and transportation, or in the alternative seeking a change of venue from Buffalo, New York to Rochester, New York. (Docket # 22). Pursuant to an order dated March 20, 2013, the Honorable Hugh B. Scott denied Pagan's request for transportation, granted Pagan's motion to change venue and transferred the case to Rochester, New York. (Docket # 23). Judge Scott deferred ruling on Pagan's motion for appointment of counsel. ( Id. ). Accordingly, currently pending before this Court is Pagan's motion for appointment of counsel. (Docket # 22). Also pending before the Court is Pagan's motion for the issuance of two non-party subpoenas duces tecum. (Docket # 27).

Pagan contends that appointment of counsel is appropriate in this case because the defendants have not responded to his discovery demands, he has had difficulty obtaining materials from a non-party financial institution, and he has had difficulties finding a notary public. ( Id. at 2-5).

Pagan also requests that the Court issue two subpoena duces tecum to two businesses, Bank of America and Taste Right Foods, which are located in the vicinity of Pagan's arrest. (Docket # 27). Pagan seeks to obtain from both business any video camera footage capturing his arrest as well as the identity of any employees who witnessed the arrest. ( Id. ).

DISCUSSION

1. Plaintiff's Request for the Appointment of Counsel

It is well-settled that there is no constitutional right to appointed counsel in civil cases. Although the Court may appoint counsel to assist indigent litigants pursuant to 28 U.S.C. § 1915(e), see, e.g., Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988), such assignment of counsel 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 v. Coughlin, 114 F.3d at 392; Cooper v. A. Sargenti Co., Inc., 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 ...


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