United States District Court, W.D. New York
W. PAYSON, United States Magistrate Judge
August 29, 2016, pro se plaintiff Bobby Campbell,
Jr. (“Campbell”) filed this action against Pepsi
Beverages Inc. (“Pepsi”) under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e,
et. seq. (Docket # 1). Currently pending before this
Court is plaintiff's request for appointment of counsel.
(Docket # 16). Also pending before the Court is
Campbell's motion seeking to expedite the discovery
process and to proceed directly to summary judgment motions.
(Docket # 17).
Appointment of Counsel
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. Campbell 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, Campbell's case does not present any special
reasons justifying the assignment of counsel. To the extent
Campbell maintains that his personal or professional
responsibilities make it difficult for him to comply with
litigation deadlines, he is free to request an extension of
those deadlines from the Court. On this record,
Campbell's request for the appointment of counsel (Docket
# 16) is DENIED without prejudice at this time. It is the
Campbell's responsibility to retain an attorney or press
forward with this lawsuit pro se. 28 U.S.C. §
maintains that the discovery requests served by Pepsi are
redundant, and he contends that Pepsi has had sufficient time
to “focus entirely” on this matter and
“should be more than ready without the inspection of my
documents.” (Id. at 4). Approximately five
months ago, on December 14, 2016, the parties participated in
a scheduling conference before the Court, during which
various scheduling deadlines were discussed with the parties
and set by the Court. (Docket # 11). That same day, the Court
issued a scheduling order which provided, among other
deadlines, that mandatory disclosures were to be made by
January 6, 2017, and that fact discovery was to be completed
by August 23, 2017. (Docket # 10). By letter dated January 5,
2017, Campbell requested an extension of his deadline to
submit mandatory disclosures, which was granted by the Court.
(Docket # 12).
record before the Court suggests that both Campbell and Pepsi
have propounded written discovery requests, which remain