United States District Court, W.D. New York
DECISION & ORDER
JONATHAN W. FELDMAN UNITED STATES MAGISTRATE JUDGE.
se plaintiff Kiaza Loccenitt ("plaintiff") brings
the instant action under 4 2 U.S.C. § 1983, alleging
that defendants T. LaB'rake, D. Vankelburg, "D.
Sagriff, R. Maloy, J. Cook, Corrections Officers at Five
Points Correctional Facility; P. Brinkeroff, Sergeant at Five
Points; and T. Jones, a nurse at Five Points, violated his
civil rights by subjecting him to excessive force and denying
him medical services. See Complaint (Docket.- # 1) .
Pending before the Court is plaintiff's motion to appoint
counsel, dated August 5., 2016. See Docket # 33.
motion, plaintiff argues that he needs Court-appoint
ed; counsel because he "is' hearing
impaired, vision impaired, and has difficulty
ambulating." Plaintiff states that his mental and
physical disabilities hinder him from preparing his case.
Plaintiff also states that the facility in which he is housed
does not have devices to review documents related to his
litigation. See Motion to Appoint Counsel (Docket #
33) . Lastly, plaintiff states that he has been threatened by
prison staff and has been denied adequate law library
services' and assistance. ' Id. For the
reasons that follow, plaintiff's motion is denied without
prejudice to renew.
civil litigants, unlike criminal defendants, do not have a
constitutional right to counsel. See Burgos v.
Hopkins, 14 F.3'd 787', 789 (2d Cir. 1994).
' Nevertheless, a court has the discretion to appoint
counsel to represent indigent litigants pursuant to 28 U.S.C.
§ 1915(e) when the facts of the case warrant it.
Sears, Roebuck & Co. v. Charles W Sears Rear
Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988);
see also, In re Martin-Trigona,
737 F.2d 1254, 1260 (2d Cir. 1984). The' Second Circuit
set forth the factors to be considered in deciding whether or
not to assign counsel in Hodge v. Police
[T]he district judge- should first determine whether the
indigent's position seems likely to be of substance. If
the claim meets this threshold requirement, the court should
then consider the indigent's ability to investigate the
crucial facts, whether conflicting evidence implicating the
need for cross-examination will be the major proof presented
to the fact finder, the indigent's ability to present the
case, the complexity of the legal issues, and any special
reason in the case why-appointment of counsel would be more
likely to lead to a just determination.
802 F.2d 58, 61-62 (2d Cir. 1986).
applying the Hodge factors, the Court, finds that
plaintiff's allegations satisfy the initial threshold
showing of merit. See, e.g., Mackey v.
DiCaprio, 312 F.Supp.2d 580, 582 (S.D.N.Y. 2004)(finding
that plaintiff's Eighth Amendment claims that defendants
subjected him to cruel and unusual punishment satisfied
threshold showing of merit), - see also Allen v.
Sakellardis, No. 02 CV 4373, 2003 WL 22232902, at *l-2
(S.D.N.Y. Sept. 29, 2003)(finding that plaintiff's
allegation that correctional officers assaulted him while he
was restrained "appears to have some chance of
success"). However, after reviewing the complaint and
considering the nature' of the factual and legal issues
involved, as well as plaintiff's ability to present his
claims, . the Court concludes that appointment of counsel is
not warranted at this particular time.
lawyer time is a precious commodity" that "should
not be allocated arbitrarily." Cooper v. A. Sargenti
Co., 877 F.2d 170, 172 (2d Cir. 1989). Here,
plaintiff's pro se complaint is straightforward
as to the nature of the events from which he is seeking
relief. The legal circumstances surrounding plaintiff's
claims do not appear to be unusually complicated, and the
factual circumstances stem from one discrete event. Plaintiff
has alleged that he was severely beaten by a number of
Corrections Officers while in his cell at Five Points
Correctional Facility. He states that, as a result, he
suffered vision impairment, impaired ambulation, acute
chronic back pain, bruising and swelling. See
Complaint (Docket # 1). Defendants filed a motion to dismiss
the case (Docket # 10), and Plaintiff's response was
thorough, clear, and logical. See Docket # 14.
■ District Court Judge Siragusa ultimately denied
defendants" motion to dismiss, ruling in favor of the
plaintiff. See Order (Docket # 21). Thereafter,
based on a- referral from Judge Siragusa (Docket # 23), this
Court held a Scheduling Conference with all parties on May
11, 2016. Plaintiff appeared telephonically at the conference
and alerted the Court that he is hearing impaired and needs
special telephone accommodations. Plaintiff was, however,
able to participate in the conference without problem and was
articulate in contributing to the formation of a Scheduling
Order. See Docket #27.
physical and mental disabilities have not appeared to deprive
plaintiff of the ability to participate in this litigation.
Plaintiff has submitted well-drafted and logical responses to
two pending motions filed before District Court Judge Geraci,
including a motion to preclude testimony at trial (Docket #
37) and a motion for summary judgment (Docket # 39) .
See Docket ## 38, 41. Accordingly, at this juncture
at least, plaintiff appears sufficiently knowledgeable and
equipped to understand and handle the litigation. See Castro
v. Manhattan E. . Suite Hotel, 279 F.Supp.2d 356,
358 (S.D.N.Y. 2003} (denying appointment of counsel where
"the case does not present novel or overly complex legal
issues, and there is no indication that [plaintiff] lacks the
ability to present his case"); West v. Dizon,
No. 2:12-cv-1293, 2014 WL 114659, at *4 (E.D.N.Y. Jan. 9,
2014) ("An incapacitating mental disability may be
grounds for appointment of counsel in some cases, but a
plaintiff making that argument must present substantial
evidence of incompetence."), - Jones v.
Kupperinger, No. 2:13-cv-0451 WBS AC P, 2015 WL 5522290,
at *3 (E.D. Cal. Sept. 17, 2015) ("Circumstances common
to most prisoners, such as a deficient general education,
lack of knowledge of the law, mental illness and disability,
do not in themselves establish exceptional circumstances,
warranting appointment of voluntary civil counsel.").
Given the limited resources available with respect
to pro bono counsel, the Court finds no
"special reason" why appointment of counsel now
would be more likely to lead to a just determination. See
Boomer v. Deperio., No. 03 CV 6348L, 2005 WL 15451,
at *l-2 ' (W..D.N.Y. Jan, 3, 2005) (denying motion to
appoint counsel despite plaintiff's claims that the
matter was complex and he had a limited knowledge of law);
Harris v. McGinnis, No. 02 CV 6481, 2003 WL
21108370., at *2 (S.D.N.Y. May 14, 2003)(denying motion for
appointment of counsel where plaintiff "offered no
special reason why appointment of counsel would increase the
.likelihood of a just determination"}. Should he need,
plaintiff may consult with the Western District's pro se
office attorneys for questions on discovery process and
procedure. Plaintiff's motion to appoint counsel is
reasons stated above, plaintiff's motion for appointment