Bell v. DeStefano et al
| Amar Bell |
| Louis J. DeStefano and Seigel |
| 1:2012cv02533 |
| April 2, 2012 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Westchester |
| Unassigned |
| Prison Condition |
| 42 U.S.C. ยง 1983 |
| Plaintiff |
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Filing
73
OPINION AND ORDER re: 54 MOTION for Summary Judgment filed by Amar Bell, 35 MOTION to Dismiss filed by Louis J. DeStefano, 57 MOTION to Dismiss Amended Complaint filed by Lawrence Siegal: No party has objected to the R&R. The Court has reviewed Judge Ellis's thorough R&R and finds no error, clear or otherwise. Judge Ellis reached his determination after a careful review of the parties' submissions. Doc. 72 at 3-6. The Court therefore ADOPTS Judge El lis's recommended decision regarding the motion for summary judgment and the motions to dismiss for the reasons stated in the R&R. Plaintiff's third amended complaint will be due March 30, 2015. The Clerk of the Court is respectfully dir ected to terminate the motions, Doc. 35, 54, 57, and mail a copy of this Order to Plaintiff. The parties' failure to file written objections precludes appellate review of this decision. PSG Poker, LLC v. DeRosa-Grund, No. 06 CIV. 1104 (DLC), 2008 WL 3852051, at *3 (S.D.N.Y. Aug. 15, 2008) (citing United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997)). (Signed by Judge Edgardo Ramos on 1/28/2015) (tn)
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Filing
45
MEMORANDUM OPINION & ORDER re: 43 APPLICATION for the Court to Request Counsel filed by Amar Bell. On May 30, 2014, Bell filed an application for the Court to request pro bono counsel. Bell states that he requires an attorney "for d iscovery purposes." (Doc. No. 43.) He does not provide any details or additional information. The Second Circuit has articulated the factors that a court should consider in deciding whether to appoint counsel for an indigent civil litiga nt under 28 U.S.C. § 1915(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. Chem ical 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). "Courts do not perform a service if they appoint a volunteer lawyer to a case which a private lawyer would not take if it were brought to his or her attention." Cooper, 877 F.2d at 174. After the two threshold determinations have been made as to indigence and mer it, 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. Hodge, 8 02 F.2d at 61-62. Here, Bell satisfies the threshold requirement of indigence insofar as his in forma pauperis status establishes his inability to afford counsel. It is unclear whether Bell satisfies the second requirement for a meritorious claim. DeStefano's motion to dismiss is pending and, as explained above, Bell has not yet filed a response. Siegel has not yet filed a response to Bell's Second Amended Complaint. Because it is impossible for the Court to determine at this early stage of the case whether Bell's case has merit, Bell's application for the Court to request pro bono counsel is DENIED WITHOUT PREJUDICE. (Signed by Magistrate Judge Ronald L. Ellis on 6/16/2014) (mro)
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