United States District Court, W.D. New York
DECISION & ORDER AND AMENDED SCHEDULING
W. PAYSON, United States Magistrate Judge
August 8, 2016, pro se plaintiff Richard Baez
(“plaintiff”) commenced this action against the
defendant pursuant to 42 U.S.C. § 1983 alleging,
inter alia, that defendant violated his
constitutional rights while he was incarcerated at the Monroe
County Jail. (Docket # 1). Currently pending before this
Court is plaintiff's requests for appointment of counsel,
to proceed in forma pauperis, and to extend the
scheduling order. (Docket # 17).
well-settled that there is no constitutional right to
appointed counsel in civil cases. Although the Court may
appoint counsel to assist indigent litigants pursuant to 28
U.S.C. § 1915(e), see, e.g.,
Sears, Roebuck and Co. v. Charles W. Sears Real Estate,
Inc., 865 F.2d 22, 23 (2d Cir. 1988), such assignment of
counsel 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
2. Whether the indigent is able to investigate the crucial
facts concerning [her] claim;
3. Whether conflicting evidence implicating the need for
cross-examination will be the major proof presented to the
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).
Court must consider the issue of appointment carefully, of
course, because “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, Hendricks v.
Coughlin, 114 F.3d at 392; Cooper v. A. Sargenti
Co., Inc., 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).
Court has reviewed the facts presented herein in light of the
factors required by law and finds, pursuant to the standards
promulgated by Hendricks, 114 F.3d at 392, and
Hodge v. Police Officers, 802 F.2d at 58, that the
appointment of counsel is not necessary at this time. As
stated above, a plaintiff seeking the appointment of counsel
must demonstrate a likelihood of success on the merits.
See Id. Plaintiff has not done so at this stage.
Moreover, the legal issues in this case do not appear to be
complex, nor does it appear that conflicting evidence will
implicate the need for extensive cross-examination at trial.
Finally, plaintiff's case does not present any special
reasons justifying the assignment of counsel. On this record,
plaintiff's request for the appointment of counsel
(Docket # 17) 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.
respect to plaintiff's request to proceed in forma
pauperis (Docket # 17), that request is DENIED as MOOT.
Plaintiff was previously granted leave to proceed in
forma pauperis. (Docket # 6). Finally, plaintiff's
request to extend the scheduling deadlines (Docket # 17) is
GRANTED. This Court's February 15, 2017 Scheduling Order
(Docket # 16) shall be amended as follows:
motions to join other parties or to amend pleadings shall be
filed by August 2, 2017.
defendants may depose the plaintiff pursuant to Fed.R.Civ.P.
30(a), in person or by telephone at the correctional facility
where plaintiff resides at the time of the deposition. The
plaintiff shall be provided reasonable notice, at least 30
days in advance of the deposition, pursuant to Fed.R.Civ.P.
30(b)(1). If the plaintiff's deposition is to be taken in
person, such security measures shall be taken as are
necessary in the opinion of the superintendent of the
correctional facility where the deposition is to be taken,
including, but not limited to, the presence of corrections
officers in the ...