Mallet v. Johnson

Full title: ANTONIO MALLET, Plaintiff, v. ROBERT T. JOHNSON, BRONX COUNTY DISTRICT…

Court: United States District Court, S.D. New York

Date published: Dec 21, 2010

09 Civ. 8430 (JGK) (S.D.N.Y. Dec. 21, 2010)

Opinion

09 Civ. 8430 (JGK).

December 21, 2010

MEMORANDUM OPINION AND ORDER

JOHN KOELTL, District Judge

The Court has received the attached application for the appointment of counsel. The application is identical to an application that the Court has already denied. Accordingly, the application is denied without prejudice for the reasons stated in the Court's order of November 1, 2010.

SO ORDERED.

Dated: New York, New York December 20, 2010

APPLICATION FOR THE COURT TO REQUEST COUNSEL PURSUANT TO 18 U.S.C. § 3006A(g)

1. Name of applicant is Antonio Mallet.

2. Explain why you need a lawyer in this case. I need a lawyer assigned to assist me in litigating the serious issues dealing with evidence the Plaintiff requested. My case meets the criteria for appointment of counsel under Cooper and Hodge (likely merit, independent efforts at obtaining counsel, need for factual investigation, complex legal issues, etc.) It appears that the Plaintiff meets at least two of these criteria's. He has dutifully albeit unsuccessfully sought representation by counsel. Additionally, the thrust of his § 1983 action is obtaining ballistic and fingerprint evidence and, in present counsel's experience, obtaining evidence is something that lawyers can do far more successfully than imprisoned pro se litigants. See, also, Washington v. Smith, 219 F.3d 620, 631 (7^th Cir. 2000) (expecting incarcerated prisoner to produce witnesses wholly unreasonable). Plaintiff request oral argument on his motion to dismiss via tele conference, or by appointed counsel.

3. I declare under the penalty of perjury that the foregoing is true and correct. Pursuant to 28 U.S.C. § 1746, the information herein contained is true and accurate under the penalty of perjury.

Dated: October 20, 2010 Napanoch, New York

MEMORANDUM OPINION AND ORDER

The Court has received the attached application for the appointment of counsel. The Court of Appeals for the Second Circuit has articulated factors that should guide the Court's discretion to appoint counsel to represent an indigent litigant under 28 U.S.C. § 1915. See Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986); Jackson v. Moscicki, No. 99 Civ. 2427 (JGK), 2000 WL 511642, at *4 (S.D.N.Y. Apr. 27, 2000). For the Court to order the appointment of counsel, the plaintiff must, as a threshold matter, demonstrate that his claim has substance or a likelihood of success on the merits. See Hodge, 802 F.2d at 61-62. Only then can the Court consider the other factors appropriate to determination of whether counsel should be appointed: "plaintiff's ability to obtain representation independently, and his ability to handle the case without assistance in the light of the required factual investigation, the complexity of the legal issues, and the need for expertly conducted cross-examination to test veracity." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989). The plaintiff has failed to show that his claims are likely to have merit, and the application for the appointment of counsel is therefore denied without prejudice.

SO ORDERED.

Dated: New York, New York November 1, 2010

APPLICATION FOR THE COURT TO REQUEST COUNSEL PURSUANT TO 18 U.S.C. § 3006A(g)

1. Name of applicant is Antonio Mallet.

2. Explain why you need a lawyer in this case. I need a lawyer assigned to assist me in litigating the serious issues dealing with evidence the Plaintiff requested. My case meets the criteria for appointment of counsel under Cooper and Hodge (likely merit, independent efforts at obtaining counsel, need for factual' investigation, complex legal issues, etc.) It appears that the Plaintiff meets at least two of these criteria's. He has dutifully albeit unsuccessfully sought representation by counsel. Additionally, the thrust of his § 1983 action is obtaining ballistic and fingerprint evidence and, in present counsel's experience, obtaining evidence is something that lawyers can do far more successfully than imprisoned pro se litigants. See, also, Washington v. Smith, 219 F.3d 620, 631 (7^th Cir. 2000) (expecting incarcerated prisoner to produce witnesses wholly unreasonable). Plaintiff request oral argument on his motion to dismiss via tele conference. or by appointed counsel.

3. I declare under the penalty of perjury that the foregoing is true and correct. Pursuant to 28 U.S.C. § 1746, the information herein contained is true and accurate under the penalty of perjury.

Dated: October 20, 2010 Napanoch, New York

MEMORANDUM Pro Se Office

To: From: Pro Se Date: Re: Antonio Mallet v. Robert T. Johnson, et al. 09 Civ. 8430 (JGK) Honorable John G. Koeltl, USDJ V. Noriega, Office, x0177 December 3, 2010 , The attached document, which was received by this Office onDecember 2, 2010. has been submitted to the Court for filing. The document is deficient as indicated below. Instead of forwarding the document to the docketing unit, I am forwarding it to you for your consideration See, Fed.R.Civ.P. 5(d)(2)(B), (4). Please return this memorandum with the attached papers to this Office, indicating at the bottom what action should be taken.Plaintiff did not include an In Forma Pauperis application (IFP) with the Motion for Appointment of Counsel. ACCEPT FOR FILING RETURN TO PRO SE LITIGANT _____________________ I have already decided to application See attached ( ) No original signature. ( ) No affirmation of service/proof of service. ( ) The request is in the form of a letter. (x) Other: ___________________________________________________________________ _____________________________________________________________________________________________ (x) ( ) _______________________________________ Comments: United States District Judge ________________________ _______________________________________ ________________________ United States Magistrate Judge Dated: 12/13/10.