United States District Court, W.D. New York
July 14, 2014
Deborah Grizzard, Plaintiff,
Erie County Medical Center, et al., Defendants.
HUGH B. SCOTT, Magistrate Judge.
This case has been referred to the undersigned for pretrial proceedings. A scheduling conference will be held on July 30, 2014 at 2:45 p.m., in the courtroom of the undersigned at 2 Niagara Square, Buffalo, New York.
PRIOR TO THE SCHEDULING CONFERENCE, THE PARTIES ARE DIRECTED TO COMPLY WITH THE REQUIREMENTS OF RULE 26 OF THE FEDERAL RULES OF CIVIL PROCEDURE. This means that, at a minimum, (1) the parties are to have exchanged initial disclosures as required by Rule 26(a)(1); (2) the parties are to have met or conferred as required under Rule 26(f); and (3) the parties are to have submitted a proposed discovery plan to the Court at least 7 days prior to the scheduling conference as also required by Rule 26(f).
Also, the Magistrate Judge is available to conduct any or all proceedings in a jury or non-jury civil matter and to order the entry of judgment in the case pursuant to 28 U.S.C. 636(c). Attached hereto is a Notice of Right to Consent to Disposition of a Civil Case by a United States Magistrate Judge, together with a consent form, for consideration by the parties. The parties are encouraged to consider and act favorably on such consents; however, it is emphasized that there will be no substantive adverse consequences should the parties elect not to do so.
The plaintiff has also requested the appointment of counsel in this case. (Docket No. 6 at page 6). 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); Carmona v. United States Bureau of Prisons , 243 F.3d 629, 632 (2d Cir.2001); Abdur-Raqiyb v. Erie County Medical Center , 2006 WL 1800710, at *1 (W.D.N.Y., 2006). In considering a motion for the appointment of counsel, the Court may also consider the merits of the plaintiff's claim. The Second Circuit has held that "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, 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). See also Smolen v. Corcoran, 2013 WL 4054596 (W.D.N.Y., 2013)(In deciding whether to grant a request to appoint pro bono counsel, district courts should evaluate several factors, including the merits of the claim, the factual issues and complexity of the case, the plaintiff's ability to present the case, and the plaintiff's inability to obtain counsel.).
The Court has reviewed the facts presented herein in light of the factors required by law as discussed above. It does not appear the legal issues presented are unduly complex. The plaintiff's motion for appointment of counsel is denied without prejudice at this time. It is the plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C. § 1654. The plaintiff is also advised of the Pro Se Assistance Program. See the attached notice.