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Court Denies Appointment of Counsel in Medical Case
In deciding a motion to appoint counsel, the court first should determine
whether the plaintiff is indigent, then whether the indigent's position
"seems likely to be of substance." Then the court
has discretion to consider the following factors: (1) the indigent's
ability to investigate the crucial facts; (2) whether conflicting evidence
implicating the need for cross-examination will be the major proof
presented to the fact finder; (3) the indigent's ability to present the
case; (4) the complexity of the legal issues involved; and (5) any special
reason in that case why appointment of counsel would be more likely to lead
to a just determination.
This plaintiff's claims are not sufficiently meritorious in that he has
failed to spell out how any of the named defendants acted with deliberate
indifference to his medical needs, and has not demonstrated any
difficulties in investigating or presenting his case (the court does not
note any tension between those two conclusions). See: Massey v. Greinal,
164 F.Supp.2d 377 (S.D.N.Y. 2001).
whether the plaintiff is indigent, then whether the indigent's position
"seems likely to be of substance." Then the court
has discretion to consider the following factors: (1) the indigent's
ability to investigate the crucial facts; (2) whether conflicting evidence
implicating the need for cross-examination will be the major proof
presented to the fact finder; (3) the indigent's ability to present the
case; (4) the complexity of the legal issues involved; and (5) any special
reason in that case why appointment of counsel would be more likely to lead
to a just determination.
This plaintiff's claims are not sufficiently meritorious in that he has
failed to spell out how any of the named defendants acted with deliberate
indifference to his medical needs, and has not demonstrated any
difficulties in investigating or presenting his case (the court does not
note any tension between those two conclusions). See: Massey v. Greinal,
164 F.Supp.2d 377 (S.D.N.Y. 2001).
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Related legal case
Massey v. Greinal
| Year | 2001 |
|---|---|
| Cite | 164 F.Supp.2d 377 (S.D.N.Y. 2001) |
| Level | District Court |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
EDWARD MASSEY, Plaintiff, - against - CHARLES GREINAL, et. al., Defendant.
00 Civ. 3168 (LMM) (RLE)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
164 F. Supp. 2d 377; 2001 U.S. Dist.
September 7, 2001, Decided
September 10, 2001, Filed
DISPOSITION: [**1] Plaintiff's motion for appointment of counsel DENIED without prejudice.
COUNSEL: EDWARD MASSEY, plaintiff, Pro se, Ossining, NY.
JUDGES: The Honorable Ronald L. Ellis, United States Magistrate Judge.
OPINION BY: Ronald L. Ellis
OPINION: [*378]
MEMORANDUM OPINION AND ORDER
RONALD L. ELLIS, United States Magistrate Judge:
I. INTRODUCTION
In a complaint filed on April 26, 2000, pro se incarcerated plaintiff Edward Massey ("Massey"), brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights under the Eighth and Fourteenth Amendments at Sing Sing Correctional Facility in August 1998 and February 1999. By application dated January 4, 2001, Massey has requested that counsel be assigned to assist him. In support of the application, Massey indicated that he has poor health, and included letters from several legal services organizations and private firms that declined to represent him. For the reasons which follow, the request is DENIED.
II. DISCUSSION
The Court of Appeals for the Second Circuit has articulated the factors that a court should consider in deciding whether to appoint counsel for an indigent civil litigant under 28 U.S.C. § 1915 [**2] (d). The court "exercises substantial discretion, subject to the requirement that it be guided by sound legal principle." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) (citing Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983)). The court's first inquiry is whether plaintiff can afford to obtain counsel. See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). If the court finds that a plaintiff cannot afford counsel, it must then examine the merits of the case and determine whether the indigent's position "seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). Once initial determinations have been made as to indigence and merit, the court has discretion to consider the following factors: (1) the indigent's ability to investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder; (3) the indigent's ability to present the case; (4) the complexity of the legal issues involved; and (5) any special reason in that [**3] case why appointment of counsel would be [*379] more likely to lead to a just determination. See id. at 61-62.
Here, Massey satisfies the threshold requirement of indigence insofar as his in forma pauperis status establishes his inability to afford counsel. He, however, fails to meet the second threshold requirement, see Hodge, supra, in that his claims are not sufficiently meritorious under Eighth Amendment standards. Massey alleges that defendants unlawfully detained him pursuant to disciplinary charges. He also claims that he was unlawfully double-celled for over five months although he should have been exempt from such placement because he was diagnosed with clinical depression. Massey further alleges that he is being denied proper medical care and medication.
Pursuant to an order by Chief Judge Michael B. Mukasey, plaintiff filed an amended complaint on May 12, 2000, to clarify the incidents and constitutional challenges underlying his original complaint. Even with his amendment, however, Massey fails to articulate how any of the defendants acted with "deliberate indifference to serious medical needs," Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), [**4] and thus violated the Eighth Amendment. Additionally, in assessing the Hodge factors, the Court notes that Massey has not demonstrated any difficulties in investigating or presenting his case. Massey has failed to show that counsel is necessary in this action. Plaintiff's motion is, therefore, DENIED without prejudice.
SO ORDERED this 7th day of September 2001
New York, New York
The Honorable Ronald L. Ellis
United States Magistrate Judge
00 Civ. 3168 (LMM) (RLE)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
164 F. Supp. 2d 377; 2001 U.S. Dist.
September 7, 2001, Decided
September 10, 2001, Filed
DISPOSITION: [**1] Plaintiff's motion for appointment of counsel DENIED without prejudice.
COUNSEL: EDWARD MASSEY, plaintiff, Pro se, Ossining, NY.
JUDGES: The Honorable Ronald L. Ellis, United States Magistrate Judge.
OPINION BY: Ronald L. Ellis
OPINION: [*378]
MEMORANDUM OPINION AND ORDER
RONALD L. ELLIS, United States Magistrate Judge:
I. INTRODUCTION
In a complaint filed on April 26, 2000, pro se incarcerated plaintiff Edward Massey ("Massey"), brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights under the Eighth and Fourteenth Amendments at Sing Sing Correctional Facility in August 1998 and February 1999. By application dated January 4, 2001, Massey has requested that counsel be assigned to assist him. In support of the application, Massey indicated that he has poor health, and included letters from several legal services organizations and private firms that declined to represent him. For the reasons which follow, the request is DENIED.
II. DISCUSSION
The Court of Appeals for the Second Circuit has articulated the factors that a court should consider in deciding whether to appoint counsel for an indigent civil litigant under 28 U.S.C. § 1915 [**2] (d). The court "exercises substantial discretion, subject to the requirement that it be guided by sound legal principle." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) (citing Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983)). The court's first inquiry is whether plaintiff can afford to obtain counsel. See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). If the court finds that a plaintiff cannot afford counsel, it must then examine the merits of the case and determine whether the indigent's position "seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). Once initial determinations have been made as to indigence and merit, the court has discretion to consider the following factors: (1) the indigent's ability to investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder; (3) the indigent's ability to present the case; (4) the complexity of the legal issues involved; and (5) any special reason in that [**3] case why appointment of counsel would be [*379] more likely to lead to a just determination. See id. at 61-62.
Here, Massey satisfies the threshold requirement of indigence insofar as his in forma pauperis status establishes his inability to afford counsel. He, however, fails to meet the second threshold requirement, see Hodge, supra, in that his claims are not sufficiently meritorious under Eighth Amendment standards. Massey alleges that defendants unlawfully detained him pursuant to disciplinary charges. He also claims that he was unlawfully double-celled for over five months although he should have been exempt from such placement because he was diagnosed with clinical depression. Massey further alleges that he is being denied proper medical care and medication.
Pursuant to an order by Chief Judge Michael B. Mukasey, plaintiff filed an amended complaint on May 12, 2000, to clarify the incidents and constitutional challenges underlying his original complaint. Even with his amendment, however, Massey fails to articulate how any of the defendants acted with "deliberate indifference to serious medical needs," Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), [**4] and thus violated the Eighth Amendment. Additionally, in assessing the Hodge factors, the Court notes that Massey has not demonstrated any difficulties in investigating or presenting his case. Massey has failed to show that counsel is necessary in this action. Plaintiff's motion is, therefore, DENIED without prejudice.
SO ORDERED this 7th day of September 2001
New York, New York
The Honorable Ronald L. Ellis
United States Magistrate Judge