Opinion
06 Civ. 6331 (PAC) (KNF).
July 7, 2008
MEMORANDUM AND ORDER
Rogelio Headley ("Headley"), proceeding pro se and in forma pauperis ("IFP"), commenced this action, pursuant to 42 U.S.C. § 1983, alleging the defendants violated his constitutional rights when he was housed at New York's Sing Sing Correctional Facility. On May 7, 2008, the assigned district judge adopted the Court's Report and Recommendation: (i) denying the defendants' motion to dismiss the Fourteenth Amendment and retaliation claims against Correction Officer Simpson ("Simpson") and the retaliation claim against Correction Officer B. Ellis ("Ellis"); and (ii) dismissing all other claims. Before the Court is the plaintiff's application for counsel to be appointed to assist him in prosecuting this action. The defendants do not oppose the plaintiff's application.
28 U.S.C. § 1915(e)(1) provides that "[t]he court may request an attorney to represent any person unable to [afford] counsel." The appointment of counsel is within the court's broad discretion. See Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986), cert. denied, 502 U.S. 986, 112 S. Ct. 596 (1991). Since the plaintiff is proceeding IFP, Section 1915(e)(1) applies to him. Where, in a civil action, an indigent plaintiff applying for appointment of counsel fails to make any effort to engage counsel, appointing counsel for the applicant would not be appropriate. See Abukar v. Comm'r of Soc. Sec., 07 Civ. 1770, 2007 WL 2729858, at *2 (S.D. Cal. Sept. 19, 2007). In determining whether to appoint counsel, a district court "should first determine whether the indigent's position seems likely to be of substance." Hodge, 802 F.2d at 61. If this threshold requirement is met, the court should then consider:
the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.
Id. at 61-62.
To prevail on a 42 U.S.C. § 1983 First Amendment retaliation claim, a plaintiff is required to establish that: (1) he engaged in protected speech; (2) the defendant(s) took adverse action against him; and (3) a causal connection between the protected speech and the adverse action exists. See Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004). To sustain a due process claim, a plaintiff must establish that: (a) he possessed a liberty interest; and (b) the defendant(s) deprived him of that interest as a result of insufficient process. See Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004). "Prison discipline implicates a liberty interest when it `imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Id. (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300). Under the Fourteenth Amendment, before an inmate may be disciplined, he "is entitled to advance written notice of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reason for the disciplinary action taken." Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004).
In his application for appointed counsel, Headley asserts he requested representation from Prisoners' Legal Services of New York, a private non-profit legal services organization providing civil legal services to indigent inmates in New York, but it declined his request for assistance. Without providing any details, Headley also asserts he has written to several law firms requesting pro bono counsel but received no response. Headley contends: "I am in need of the professional skills of an articulate attorney to argue my case at trial."
In his complaint, Headley alleged Simpson and Ellis retaliated against him, after he filed a grievance against Simpson, by: (a) placing him in keep-lock status for 16 days, without affording him a hearing; and (b) slapping his face. Headley alleged further that, while in keep-lock status, he was deprived of meals, showers and recreation. As per the May 7, 2008 order of the assigned district judge, Headley's claims against Simpson and Ellis, noted above, survived the defendants' motion to dismiss, because they were plausible on their face; thus Headley satisfies the threshold requirement, for determining whether to appoint counsel, of showing that his position seems likely to be of substance. The nature of the factual issues concerning Headley's retaliation and due process claims is straightforward and not complex; therefore, he should have no difficulty investigating the pertinent facts. Accordingly, this factor militates against granting the plaintiff's application for appointed counsel. It appears that the factual issues of Headley's Fourteenth Amendment claim and First Amendment retaliation claims may turn on findings respecting credibility, in which case, exposing the truth would require the plaintiff to be skilled in the art of cross-examination. Nothing in the record before the Court establishes that Headley possesses this skill. Thus, this factor militates in favor of appointing counsel for him. Headley presented all his allegations in chronological order, with clarity, succinctly and in great detail. He noted dates, names, places and the relationships among the alleged events and the persons involved, indicating he understands what facts entitle him to relief with respect to the remaining claims. While nothing in the record before the Court demonstrates Headley is skilled in the art of cross-examination, his submissions to the Court do not show him to be "unlearned" or "barely literate," and it appears to the Court that Headley is articulate and would be able to understand and follow the court's instructions at trial. See Hodge, 802 F.2d at 60. Based on the clarity and comprehensiveness of the complaint, as well as his ability to articulate, it is likely that Headley will be able to present his case to the factfinders without difficulty. Therefore, this factor militates against appointing counsel for Headley. It also appears, from the face of the complaint, that Headley comprehends the legal issues pertinent to his remaining claims, which, like the factual allegations, are not complex, and this factor militates against appointing Headley counsel. Moreover, Headley has not identified, and the Court does not find, any special reason, in this case, why appointment of counsel would be more likely to lead to a just determination.
In the circumstance of this case, having considered the various factors noted above, the Court finds that granting the plaintiff's application, for appointed counsel, is not warranted; the application (Docket Entry No. 47), is denied.
SO ORDERED: