United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD United States District Judge
Michael Frederick ("Plaintiff) filed this action on
September 15, 2010, alleging violations of his civil rights.
(Dkt. 1). Following discovery and dispositive motions,
Plaintiffs claims for excessive use of force, failure to
supervise, and failure to intervene remain. (See
Dkt. 64; Dkt. 74). A jury trial is scheduled to begin on
September 11, 2017. Presently before the Court is Plaintiffs
fifth motion to appoint counsel. (See Dkt. 93).
argues that he is indigent, that his imprisonment limits his
ability to litigate the "complex" issues in this
case, that counsel would be better able to examine witnesses
during trial, and that Plaintiff has tried, but failed, to
secure counsel on his own. (Id. at ¶¶1-4).
reasons stated below, Plaintiffs motion is denied.
28 U.S.C. § 1915(e), the Court may appoint counsel to
assist indigent litigants, Sears, Roebuck & Co. v.
Charles Sears Real Estate, Inc., 865 F.2d 22, 23-24 (2d
Cir. 1988), and the assignment of pro bono counsel
in civil cases is within the trial court's discretion.
In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir.
1984). The court must evaluate "the merits of [the]
plaintiffs case, the plaintiffs ability to pay for private
counsel, his efforts to obtain a lawyer, the availability of
counsel, and the plaintiffs ability to gather the facts and
deal with the issues if unassisted by counsel."
Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172
(2d Cir. 1989). Particular attention must be paid to the
merits of the plaintiffs claim. Id. ("Even
where the claim is not frivolous, counsel is often
unwarranted where the indigent's chances of success are
extremely slim." (quoting Hodge v. Police
Officers, 802 F.2d 58, 60 (2d Cir. 1986))). This is
because "every assignment of a volunteer lawyer to an
undeserving client deprives society of a volunteer lawyer
available for a deserving cause." Id.
Additionally, for prison inmates, the court must also give
weight to the plaintiffs lack of practical access to
attorneys. Id. at 173-74.
was in prison when he filed the complaint, and remains in
custody. Plaintiff has previously been granted leave to
proceed in forma pauperis. (Dkt. 3). In his in
forma pauperis motion, Plaintiff stated that he was
incarcerated, had not worked in the past 12 months, and did
not have any cash or other assets. (Dkt. 2 at 1-2). A prison
official certified that Plaintiffs average account balance
for the previous six months was $50.02. (Id. at 2).
Plaintiff has conclusively shown that he is indigent, and has
met the threshold test for appointing counsel.
on balance, the Cooper factors weigh against
appointing counsel at this time. As the Second Circuit has
noted, "[t]he vast majority of litigation on behalf of
personal claimants is financed initially by lawyers who
accept the representation for a contingent fee in the
expectation of being rewarded by a share of the
winnings." Cooper, 877 F.2d at 173. Plaintiff
states that he "constantly strives to obtain a lawyer on
his own" but he has not been able to secure counsel.
(Dkt. 93 at ¶ 4). Plaintiff attaches a letter from a law
firm declining to take Plaintiffs case. (Id. at 3;
see also Dkt. 48 at 5-8 (attaching letters from law
firms declining to represent Plaintiff); Dkt. 82 at 3
(same)). Plaintiff has made attempts to find counsel.
However, this, in itself, is insufficient to warrant the
appointment of counsel.
Court finds that Plaintiff has not established that he has a
likelihood of success on the merits. The claims presented
revolve around a single use of force incident. Plaintiff
claims that during a cell extraction he was beaten and choked
by the Defendant correctional officers. (Dkt. 4 at 7-8).
Plaintiff further claims that Defendant Donald Holton, the
correctional officers' supervisor, failed to properly
supervise and failed to intervene in his beating.
(Id. at 9). The trial will turn on the jury's
determination as to the credibility of the witnesses, not any
complex factual or legal issues which Plaintiff is incapable
of handling on his own. And, despite Plaintiffs assertion to
the contrary, the trial is unlikely to require extensive
cross-examination for which expert counsel is required.
this point, Plaintiff has submitted a clear, well-drafted
amended complaint (see generally id.), and has
drafted motion papers containing logical factual arguments in
support of his requests for relief. (See, e.g., Dkt.
93). In fact, Plaintiff successfully defended against
Defendants' repeated dispositive motions in this case.
(See Dkt. 64; Dkt. 74).
an appearance on April 25, 2017, Plaintiff asserted, for the
first time, that he had mental health issues which limited
his ability to represent himself. (See Dkt. 102).
Plaintiff did not raise this issue in the instant motion, or
in any of his previous motions to appoint counsel.
(See Dkt. 17; Dkt. 20; Dkt. 48; Dkt. 82; Dkt. 93).
Plaintiff has not submitted sufficient information upon which
this Court can determine that his claimed mental health
problems would affect his ability to represent himself at
trial. Additionally, the Court has held two appearances with
Plaintiff and has found Plaintiff able to succinctly and
competently articulate his thoughts in a manner which
suggests that he is capable of presenting his case to a jury
without the assistance of counsel. See Fowler v.
Fischer, 13-CV-6546-FPG-JWF, 2017 WL 1194377, at *3
(W.D.N.Y. Mar. 30, 2017) (denying appointment of counsel
where the "plaintiff appear[ed] sufficiently
knowledgeable and equipped to understand and handle the
litigation"); Castro v. Manhattan E. Suite
Hotel, 279 F.Supp.2d 356, 358 (S.D.N.Y. 2003) (denying
appointment of counsel where "the case [did] not present
novel or overly complex legal issues, and there [was] no
indication that [the plaintiff] lack[ed] the ability to
present his case").
the factors set forth in Cooper, the Court finds
that appointing counsel is inappropriate, and, therefore,