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Romano v. Ulrich

United States District Court, W.D. New York

August 28, 2017

ANTHONY ROMANO, Plaintiff,
v.
KEITH ULRICH, et al, Defendants.

          DECISION AND ORDER

          ELIZABETH WOLFORD UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff Anthony Romano (''Plaintiff') commenced this action on June 17, 2013, alleging excessive use of force in violation of his civil rights. (Dkt. 1). Defendants answered the complaint on March 20, 2014, asserting, inter alia, that Plaintiff failed to exhaust his administrative remedies prior to filing suit in this Court. (Dkt. 9 at ¶ 11-12). Currently pending before the Court are Plaintiffs motion to appoint counsel (Dkt. 70), and Defendants' motion for summary judgment (Dkt. 56). For the reasons stated below, Plaintiffs motion is denied, and Defendants' motion is granted.

         DISCUSSION

         I.Appointment of Counsel is Not Warranted

         Plaintiff requests that this Court appoint counsel to litigate the case on his behalf. (Dkt. 70). Pursuant to 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. 4). 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 at this time.

         Plaintiff was previously appointed counsel to represent him in this case. (Dkt. 12). Two years later, as discovery was coming to a close, Plaintiffs counsel moved to withdraw. (Dkt. 51). United States Magistrate Judge Hugh B. Scott granted the motion due to a breakdown in the attorney-client relationship, arising out of Plaintiff s refusing to meet with counsel during scheduled visits. (Dkt. 52; Dkt. 54). The Court has previously denied re-appointment of counsel. (Dkt. 58; Dkt. 61).

         Plaintiff has not established that he has a likelihood of success on the merits. As described below, summary judgment for Defendants is appropriate because Plaintiff failed to exhaust administrative remedies before bringing this action. Thus, the appointment of counsel is unwarranted.

         The Court also notes that Plaintiff has not submitted any evidence that he has attempted to obtain an attorney. Although Plaintiff is incarcerated, this alone is not an absolute barrier to finding counsel to litigating on his behalf.

         Additionally, as Magistrate Judge Scott found, Plaintiffs "behavior with appointed counsel makes expending the scarce resource of volunteer attorney time problematic." (Dkt. 58 at 7). Even if Plaintiff could establish a likelihood of success, his prior behavior with appointed counsel weighs heavily against again appointing counsel.

         On balance, and for the reasons stated above, Plaintiffs motion to appoint counsel is denied.

         II. Summary Judgment is Appropriate

         A. ...


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