United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH WOLFORD UNITED STATES DISTRICT JUDGE
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.
of Counsel is Not Warranted
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.
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.
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).
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.
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
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.
balance, and for the reasons stated above, Plaintiffs motion
to appoint counsel is denied.
Summary Judgment is Appropriate