Opinion
99 Civ. 1681 (KNF)
June 13, 2002
MEMORANDUM and ORDER
Everett B. Edmonds ("Edmonds") brought this action, pursuant to 42 U.S.C. § 1983, pro se. He contends that his rights to be free from cruel and unusual punishment and to substantive due process, under the Eighth Amendment, were violated when defendant Corrections Officer Marisol Olmo ("Olmo") threw an unknown liquid into plaintiff's eyes, after she alleged that he exposed himself to her and masturbated in her presence. Edmonds also contends that a supervisory corrections officer, Sergeant Edward Vaugn ("Vaugn"), was aware that Officer Olmo planned to assault Edmonds, as described above, and failed to take action to thwart her plan and thereby ensure plaintiffs safety. Before the Court is an application by plaintiff that the Court appoint counsel to represent him. That application is addressed below.
Unlike criminal defendants, prisoners, such as plaintiff, and indigents filing civil actions have no constitutional right to counsel. However, 28 U.S.C. § 1915(e)(1) provides that the Court may request an attorney to represent any person unable to afford counsel. Plaintiff made an application to proceed in forma pauperis which was granted. Therefore, he is within the class to whom 28 U.S.C. § 1915(e)(1) speaks.
"In deciding whether to appoint counsel, [a] district court should first determine whether the indigent's position seems likely to be of substance. See Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986), cert denied, 502 U.S. 986, 112 S.Ct. 596 (1991). This means that it appears to the court "from the face of the pleadings," (see Stewart v. McMickens, 677 F. Supp. 226, 228 [S.D.N.Y. 1998]), that the claim(s) asserted by the plaintiff may have merit," (see Vargas v. City of New York, No. 97 Civ. 8426, 1999 WL 486926, at *2 [S.D.N.Y. July 9, 1991]), or that "plaintiff appears to have some chance of success. . . ." See Hodge, 802 F.2d at 60-61.
In the instant case, plaintiff has alleged that his civil rights were violated by an unwarranted attack upon him by a corrections officer and a complicit corrections sergeant, both of whom were duty-bound to ensure plaintiffs security and safety. Plaintiff contends that, as a result of the conduct attributable to the corrections personnel, he sustained injuries to his eyes. The allegations made by plaintiff regarding Officer Olmo and Sergeant Vaugn have withstood challenge via a motion for summary judgment. Therefore, it cannot be said that plaintiffs claims lack any merit. Since plaintiff has surmounted the first Hodge hurdle, it is appropriate for the court to consider the other factors noted in Hodge to determine whether plaintiffs motion should be granted.
With respect to Edmonds' ability to investigate the facts pertinent to this action, the Court finds that plaintiff has demonstrated, throughout the pretrial discovery phase of the litigation, that he is adept at obtaining documents, identifying necessary witnesses and employing the affidavit as a tool to secure and preserve evidence. Therefore, no need exists to appoint counsel to aid plaintiff in investigating the pertinent facts. Furthermore, the pretrial discovery phase of the litigation has concluded; additional investigation, respecting the facts pertinent to the action, is not warranted.
The facts in the instant case are hotly contested. At the trial, conflicting evidence concerning the assault alleged to have been perpetrated upon plaintiff by Officer Olmo will be presented. Therefore, the need for expertly conducted cross-examination, on behalf of the plaintiff, will be vital. In like manner, a clear presentation of the evidence plaintiff has amassed in support of his claims in this action will also be vital. These two factors militate in favor of appointing counsel to assist plaintiff as this litigation moves toward trial. While the complexity of the legal issues that confront the parties to this action is not great, and plaintiff has demonstrated, through his submissions to the Court and during pretrial conferences, his understanding of the law applicable to the claims he has raised, a presentation of the case, such that the jury may fairly determine the facts and apply them to the law as given by the Court, may well be beyond plaintiff's ability. This too militates in favor of granting Edmonds the relief he seeks through the instant motion.
Under the circumstances, having considered the factors set forth in Hodge, supra, the Court finds that appointing counsel for plaintiff in this action would be reasonable and appropriate. Accordingly, plaintiff's application is granted. The Pro Se Office for this judicial district is directed to request pro bono counsel for plaintiff in accordance with the Pro Bono panel's procedures.