DECISION and ORDER

CHRISTIAN F. HUMMEL, Magistrate Judge.

Presently before this Court is a renewed motion from plaintiff Charles W. Gerena ("Gerena") seeking appointment of counsel. Dkt. No. 49. Gerena also requests an extension of time to file an amended complaint.1 Id.

A party has no constitutionally guaranteed right to the assistance of counsel in a civil case. See, e.g., United States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981). However, pursuant to 28 U.S.C. § 1915(e), the Court may request an attorney to represent an indigent party. See 28 U.S.C. §1915(e)(1). Courts cannot use a bright-line test in determining whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Rather, a number of factors must be carefully considered by the court in ruling upon such a motion.

The Court has reviewed the file in this matter in conjunction with the elements discussed in Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986) and Hendricks v. Coughlin, 114 F.3d 390 (2d Cir. 1997) as to the factors a court should consider in determining whether to appoint counsel for a pro se litigant. Based upon that review, this Court finds that appointment of pro bono counsel is warranted. In so ruling, however, the Court reminds plaintiffs that 28 U.S.C. § 1915(e) authorizes the Court to "request an attorney to represent any person unable to afford counsel." See 28 U.S.C. § 1915(e)(1) (emphasis added); Mallard v. United States District Court, 490 U.S. 296, 298 (1989) (28 U.S.C. § 1915(e) does not authorize a federal court to require an unwilling attorney to represent an indigent litigant in a civil case). Actual appointment of counsel is contingent upon the availability of pro bono counsel to accept voluntarily an appointment. "If no [one] agrees to represent the plaintiff, there is nothing more the Court can do." Rashid v. McGraw, No. 01CIV10996, 2002 WL 31427349, at *1 n.1 (S.D.N.Y. Oct. 29, 2002).2

In light of the foregoing, plaintiffs' request for an extension of time to file an amended complaint is denied, but the deadline for filing an amended complaint is stayed until further order of the Court.

WHEREFORE, it is hereby

ORDERED that plaintiff Gerena's renewed motion for appointment of pro bono counsel to represent plaintiffs in this action (Dkt. No. 49) is GRANTED as set forth above;3 and it is further

ORDERED that plaintiff Gerena's motion requesting an extension of time for plaintiffs to file an amended complaint (Dkt. No. 49) is DENIED, but the time to file an amended complaint is hereby STAYED until further Order of the Court; and it is further

ORDERED that the Clerk serve a copy of this Order on the parties.

IT IS SO ORDERED.

2002 WL 31427349

Only the Westlaw citation is currently available. United States District Court, S.D. New York.

Prisoner who brought § 1983 action against city correctional facility and others, alleging deliberate indifference to serious dental problems, moved for pro bono counsel. The District Court, Pitman, J., held that claim was sufficiently meritorious to warrant submission of case to panel of pro bono attorneys for possible representation of prisoner by pro bono counsel.

Motion granted.

MEMORANDUM OPINION AND ORDER

PITMAN, Magistrate J.

*1 By a motion dated May 20, 2002, plaintiff moves for pro bono counsel.1 For the reasons set forth below, the motion is granted.

The factors to be considered in ruling on a motion for pro bono counsel are well settled and include "the merits of plaintiffs case, the plaintiffs ability to pay for private counsel, [plaintiffs] efforts to obtain a lawyer, the availability of counsel, and the plaintiffs ability to gather the facts and deal with the issues if unassisted by counsel." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir.1986). Of these, "[t]he factor which command[s] the most attention [is] the merits." Id. Accord Odom v. Sielaff, 90 Civ. 7659(DAB), 1996 WL 208203 (S.D.N.Y. April 26, 1996). As noted fifteen years ago by the Court of Appeals:

Cooper v. A. Sargenti Co., supra, 877 F.2d at 174. See also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir.1997) ("`In deciding whether to appoint counsel ... the district judge should first determine whether the indigent's position seems likely to be of substance."').

Plaintiffs motion papers adequately establish all of the grounds for pro bono counsel except the potential merit of the claim. However, I conclude that the motion papers, in conjunction with the complaint, do establish a sufficient basis for the submission of this matter to the pro bono panel.

This action is brought pursuant to 42 U.S.C. § 1983; plaintiff, an incarcerated inmate, alleges that defendants were deliberately indifferent to serious dental problems from which he suffered with the result that plaintiff suffered prolonged an unnecessary pain and now suffers from an increased likelihood that plaintiff will lose all of his lower teeth.2 The complaint sets forth the alleged facts giving rise to plaintiffs claim, including plaintiffs numerous requests for treatment of his lower teeth and the actions taken in response. Although it is impossible to determine the ultimate merits of plaintiffs claim at this time, the detailed allegations in the complaint, the nature of the deficient health care alleged and plaintiffs allegation that he previously recovered a judgment in the New York Court of Claims for the loss of his upper teeth lead me to conclude that the plaintiffs claim is at least sufficiently meritorious for the complaint to be considered by the pro bono panel.

Accordingly, plaintiffs motion to have this matter added to the list of cases considered by the Court's pro bono panel is granted. The Pro Se Clerk is directed to submit a copy of the complaint and a copy of this Order to the members of the panel.

All Citations

Not Reported in F.Supp.2d, 2002 WL 31427349