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Gibson v. Smith

United States District Court, W.D. New York

November 22, 2017

RAMON CHARLES GIBSON, Plaintiff,
v.
BEVERLY CASIOPIA SMITH, Defendant.

          DECISION AND ORDER

          MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE .

         INTRODUCTION

         Pro se plaintiff Ramon Charles Gibson (“plaintiff” or “Gibson”) commenced the instant action on July 10, 2017, alleging that defendant Beverly Casopia Smith (“defendant” or “Smith”) knowingly misled him into believing he was the father of her minor child, who was born in 2003, and thereby wrongfully caused him to pay child support, as well as incurring other related expenses. Plaintiff concurrently filed a motion for leave to proceed in forma pauperis (Docket No. 2), which the Court denied on August 9, 2017 (Docket No. 3). Plaintiff thereafter paid the filing fee on September 1, 2017.

         Plaintiff has subsequently filed four motions that are now pending before the Court. These motions include: (1) a motion to appear telephonically; (2) a motion to appoint counsel; (3) a motion for service by publication; and (4) a motion to join a party to the case. For the reasons discussed below, each of these motions is denied.

         DISCUSSION

         I. Motion to Appear Telephonically

         Petitioner's first motion (Docket No. 4) is a request to appear telephonically and/or electronically. However, there are no court appearances currently scheduled in this case, and so plaintiff's motion is moot. Plaintiff's motion is therefore denied without prejudice to refiling if and when a court appearance is scheduled.

         II. Motion for Appointment of Counsel

         Petitioner's second motion (Docket No. 5) requests appointment of counsel. Petitioner contends that he cannot afford an attorney, and asks the Court to provide him with one.

         Pursuant to 28 U.S.C. § 1915(e)(1), the Court may request an attorney to represent a litigant who is unable to afford counsel. See Sears, Roebuck & Co. v. Charles Sears Real Estate, Inc., 865 F.2d 22, 23-24 (2d Cir. 1988). It is ultimately within the Court's discretion whether to assign pro bono counsel. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). “There is no requirement that an indigent litigant be appointed pro bono counsel in civil matters. . . .” Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994).

         In making its determination, the Court must consider “the merits of [the] plaintiff's case, the plaintiff's ability to pay for private counsel, his efforts to obtain a lawyer, the availability of counsel, and the plaintiff's 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). “Even where the claim is not frivolous, counsel is often unwarranted where the indigent's chances of success are extremely slim." Id. (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.

         In this case, the Court has reviewed plaintiff's complaint and motion and finds that appointment of counsel is not warranted at this time. As a threshold matter, plaintiff has not submitted evidence to the Court demonstrating that he is indigent. As the Court noted in its denial of plaintiff's motion for in forma pauperis status, the financial information submitted by plaintiff was incomplete and failed to provide the Court with a full picture of plaintiff's financial status. Plaintiff's most recent filing fails to remedy these deficiencies.

         Moreover, the Court does not believe plaintiff has a particularly substantial likelihood of success on his claims. A significant portion of plaintiff's claims are clearly insufficient as a matter of law. For example, petitioner has alleged a number of constitutional violations, despite the fact that defendant is a private individual and not a state actor. Plaintiff has further attempted to state claims based on a number of federal criminal statutes, but it is well-established that criminal statutes generally do not provide private causes of action. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994). Moreover, this case in the very earliest stages and, based on his submissions thus far, plaintiff appears to have the intelligence and resourcefulness necessary to litigate on his own behalf. Accordingly, the Court determines that appointment of counsel is not warranted at this juncture and denies plaintiff's motion without prejudice to renewal at a later stage of the proceedings.

         III. Motion for ...


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