United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE .
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.
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.
Motion to Appear Telephonically
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.
Motion for Appointment of Counsel
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.
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
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.
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.
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.
Motion for ...