Diaz v. Bell

S.D. New York

Diaz v. Bell

DecidedJuly 6, 2021

Docket1:21-cv-05452

StatusUnknown

This text of Diaz v. Bell (Diaz v. Bell) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Diaz v. Bell, (S.D.N.Y. 2021).

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DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT | Dare FILED 7762021 SOUTHERN DISTRICT OF NEW YORK MIGUELDIAZ, Petitioner, ORDER -V- 21-CV-5452 (LGS) (JLC) SUPERINTENDENT ERIC BELL, Respondent. we ee ee JAMES L. COTT, United States Magistrate Judge. Pro se Petitioner Miguel Diaz has moved for appointment of counsel by motion filed July 1, 2021 (Dkt. No. 11). The Court does not have a budget to pay appointed counsel in civil cases and has no power to enlist a lawyer to serve without pay. The Court must be mindful that volunteer attorney time is a precious commodity, and “courts should not grant such applications [for appointment of counsel] indiscriminately.” Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). For the Court to order the appointment of counsel, a petitioner must make “a threshold showing of some likelihood of merit.” Johnston v. Maha, 606 F.3d 39, 41 (2d Cir. 2010) (citing Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989)); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). Only then can the Court consider the other factors appropriate to the determination of whether counsel should be appointed: “the [petitioner’s] ability to investigate the crucial facts, ..., the [petitioner’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.” Johnston, 606 F.3d at 42 (citing Hodge

v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)); accord Dolan v. Connolly, 794 F.3d 290 (2d Cir. 2015). At this point in the proceedings, the Court denies Petitioner’s application for appointment of counsel without prejudice to renewal because the Court cannot conclude based on the current record that Petitioner’s claims are substantial or that he is likely to succeed on the merits. Accordingly, Petitioner should work with the Pro Se Office of the Court for any additional help that he needs and should also continue to seek to obtain private counsel. The Pro Se Office may be contacted at: Pro Se Office, United States District Court, S.D.N.Y., 40 Foley Square, Room 105, New York, NY 10007, 212-805-0175. The Clerk is respectfully directed to close docket entry number 11 and mark it as denied without prejudice. SO ORDERED. Dated: July 6, 2021 New York, New York / if LOI , A L. COTT (i States Magistrate Judge

A copy of this Order has been mailed to the following: Miguel Diaz DIN: 18A2702 Clinton Correctional Facility P.O. Box 2001 Dannemora, NY 12929

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DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT | Dare FILED 7762021 SOUTHERN DISTRICT OF NEW YORK MIGUELDIAZ, Petitioner, ORDER -V- 21-CV-5452 (LGS) (JLC) SUPERINTENDENT ERIC BELL, Respondent. we ee ee JAMES L. COTT, United States Magistrate Judge. Pro se Petitioner Miguel Diaz has moved for appointment of counsel by motion filed July 1, 2021 (Dkt. No. 11). The Court does not have a budget to pay appointed counsel in civil cases and has no power to enlist a lawyer to serve without pay. The Court must be mindful that volunteer attorney time is a precious commodity, and “courts should not grant such applications [for appointment of counsel] indiscriminately.” Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). For the Court to order the appointment of counsel, a petitioner must make “a threshold showing of some likelihood of merit.” Johnston v. Maha, 606 F.3d 39, 41 (2d Cir. 2010) (citing Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989)); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). Only then can the Court consider the other factors appropriate to the determination of whether counsel should be appointed: “the [petitioner’s] ability to investigate the crucial facts, ..., the [petitioner’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.” Johnston, 606 F.3d at 42 (citing Hodge

v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)); accord Dolan v. Connolly, 794 F.3d 290 (2d Cir. 2015). At this point in the proceedings, the Court denies Petitioner’s application for appointment of counsel without prejudice to renewal because the Court cannot conclude based on the current record that Petitioner’s claims are substantial or that he is likely to succeed on the merits. Accordingly, Petitioner should work with the Pro Se Office of the Court for any additional help that he needs and should also continue to seek to obtain private counsel. The Pro Se Office may be contacted at: Pro Se Office, United States District Court, S.D.N.Y., 40 Foley Square, Room 105, New York, NY 10007, 212-805-0175. The Clerk is respectfully directed to close docket entry number 11 and mark it as denied without prejudice. SO ORDERED. Dated: July 6, 2021 New York, New York / if LOI , A L. COTT (i States Magistrate Judge

A copy of this Order has been mailed to the following: Miguel Diaz DIN: 18A2702 Clinton Correctional Facility P.O. Box 2001 Dannemora, NY 12929

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