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Frederick v. Murphy

United States District Court, W.D. New York

August 2, 2016

PATRICK MURPHY, Officer, MICHAEL ROBYCK, Officer, JAMIE ROBINSON, Officer, DONALD HOLTON, Sergeant, and VANDERGRIF, Officer, Defendants.




         Plaintiff 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).

         For the reasons stated below, Plaintiffs motion is denied.


         In 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).

         The 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).

         Plaintiff 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).

         The examiner concluded that Plaintiff required treatment for both significant depression and thought disorder, and diagnosed severe depression with psychotic features. (Id. at 10).


         Under 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.

         Plaintiff 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.

         However, 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.

         The 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 ...

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