Opinion
02 Civ. 1710 (RMB) (RLE)
November 13, 2002
OPINION ORDER
I. INTRODUCTION
On March 5, 2002, pro se incarcerated plaintiff, Amar Bell ("Bell"), filed a complaint against defendants Captain Harris ("Harris") and four unidentified correction officers ("the John Doe defendants") for violations of 42 U.S.C. § 1983, alleging that defendants subjected him to cruel and unusual punishment. Bell applied to the Court to request counsel on August 30, 2002. For the reasons which follow, Bell's request for the appointment of counsel is DENIED.
II. BELL'S ALLEGATIONS
Bell alleges that Captain Harris entered his cell with the John Doe defendants and assaulted him by punching him in the face, ribs, head and back. He also alleges that the defendants kicked him in the chest, causing long welts. He was allegedly permitted to be treated at the clinic four hours after the assault. Bell's alleges that he has suffered emotional distress, mental depression and physical injuries.III. DISCUSSION
Civil litigants, unlike criminal defendants, do not have a constitutional right to the appointment of counsel. However, under 28 U.S.C. § 1915 (e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." 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. 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). After the two threshold 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 case why appointment of counsel would be more likely to lead to a just determination. Id. at 61-62.
Here, Bell's request to proceed in forma pauperis was granted on March 1, 2002, and therefore, he satisfies the threshold requirement of indigence. Bell's allegations, including that he was subjected to excessive force, appear to state a claim under 42 U.S.C. § 1983. This case does not present novel or overly complex legal issues, and there is no indication that Bell lacks the ability to present his case. After careful review of Bell's application in light of the aforementioned principles, the Court finds that appointment of counsel is not warranted in this case. The motion is DENIED without prejudice.