United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD 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 offeree, failure to
supervise, and failure to intervene remain. (See
Dkt. 64; Dkt. 74). A jury trial is scheduled to begin on
September 25, 2017. (Dkt. 109). Presently before the Court is
Plaintiffs sixth motion to appoint counsel. (Dkt. 107).
reasons stated below, Plaintiffs motion is denied.
Plaintiffs most recent motion to appoint counsel, Plaintiff
alleges that he has severe mental health issues which will
negatively impact his ability to prosecute his case at trial.
(Id. at 2). Plaintiff claims that he has been
diagnosed with "Anti-social personality Disorder,
Impulse Control Disorder, Depression, [and] Thought
Disorder." (Id.). Plaintiff attaches a
psychological evaluation from the New York State Office of
Mental Health as evidence. (Id. at 7-11).
evaluation does report that Plaintiff "has an extensive
history of mental health needs since incarceration, "
(id. at 7), although the needs apparently originate
from "a repetitive history of sexually acting-out
behaviors, " (id.). At the examination,
Plaintiff appeared well-groomed and was highly cooperative.
(Id. at 8). He showed no cognitive deficits or
difficulties in understanding instructions. (Id.).
Although an IQ test placed Plaintiffs Full Scale IQ at 74 (a
score which falls within the borderline range of intellectual
functioning), Plaintiffs work history, educational background
(including an 11th grade education), and ability to read,
suggest a higher level of functioning. (Id. at 7).
Plaintiff exhibited no outward signs of thought disorder or
psychosis, and his thoughts were logical and coherent.
(Id. at 8).
described his behaviors and urges to the examiner, and
reported an extremely high sexual appetite prior to
incarceration. (Id.). The reason for Plaintiffs
incarceration is reported as "Robbery 2nd, Sodomy 1st
and Rape 1st." (Id. at 7). He had no record of
mental health treatment prior to his incarceration.
(Id.). In addition to Plaintiffs sexual
predilections, he was assessed as having a "high
potential for suicide." (Id. at 11). Plaintiff
also reported an extensive history of drug and alcohol use.
(Id. at 7).
examiner concluded that Plaintiff required treatment for both
significant depression and thought disorder, and diagnosed
severe depression with psychotic features. (Id. at
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. 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. As noted in the Court's
prior Decision and Order denying the appointment of counsel,
Plaintiff has been unsuccessful in his attempts to find
counsel. (Dkt. 103 at 3). 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