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NURIDEEN ISLAM, 

Plaintiff, 

-againstBRIAN FISCHER, et al., 

07 Civ. fi25 (PKC) (DF) 

MEMORANDUM 

AND ORDER 

Defendants. 

........................................................................ X 

DEBRA FREEMAN, United States Magistrate Judge: 

This Section 1983 case arises from allegations by pro se plaintiff Nurideen Islam 

("Plaintiff') that, while he was incarcerated at the Fishkill Correctional Facility ("Fishkill"), his 

civil rights were violated by Defendants' failure to enforce an indoor-smoking ban in the unit 

where he was housed. Currently before the Court is Plaintiffs application for the Court to 

request pro bono counsel to represent him in this action. (Dkt. 1 1 .) For the reasons discussed 

below, Plaintiffs application is denied without prejudice. 

BACKGROUND 

At the commencement of this action, Plaintiff was incarcerated at Fishkill, in Beacon, 

New York (Complaint, dated Mar. 29,2007 ("Compl.") (Dkt. 2), T[ 3), although he has since 

been released from custody. In his Complaint, Plaintiff alleges that, while at Fishkill, he was 

unduly subjected to second-hand smoke, in violation of the Eighth and 14th Amendments to the 

United States Constitution. (Compl., IT[ 1, 13.) Specifically, Plaintiff alleges that, while residing 

in Fishkill's "912 Housing Unit," he was exposed to smoke when: (1) certain of the defendants 

and other prison employees "congregated ... to smoke" and "systematically smoked on the 

housing unit without regard[] for the ban on indoor smoking" (id., 77 12,36); and (2) "[tlhe 

Case 1:07-cv-03225-PKC-DCF Document 36 Filed 02/27/2008 Page 1 of 6
inmates['] bathroom . . . was constantly overcrowded with chain[-]smokers" (id., 7 107). 

Plaintiff alleges that he filed numerous grievances regarding the failure of prison officials to 

enforce the indoor smoking ban, that he appealed the denial of those grievances, and that he 

wrote to various state officials about the situation, all to no avail. (See, e.g., id., 77 12, 17, 18, 

26.) 

Plaintiff commenced this action in April 2007, by filing a Complaint (Dkt. 2) and an 

application for leave to proceed in forma pauperis, which was granted by the Court on April 19, 

2007 (Dkt. 1). On January 9, 2008, this Court dismissed the Complaint as against two of the 

named defendants and otherwise narrowed Plaintiffs claims (Dkt. 26); another motion to 

dismiss on behalf of certain other defendants is currently pending (Dkt. 32). 

Plaintiff applied for the appointment of counsel while he was still incarcerated. Since his 

release, Plaintiff has appeared before this Court for two case management conferences, on 

December 10,2007, and February 26,2008, and discovery is proceeding. Fact discovery is 

currently scheduled to be complete by April 30,2008. (Dkt. 25.) 

DISCUSSION 

Unlike criminal defendants, indigents and prisoners filing civil actions have no 

constitutional right to counsel. Barzey v. Daley, No. 99 Civ. 1 19 17 (BSJ) (KNF), 2000 WL 

959713 (S.D.1V.Y. Jul. 11,2000). Under 28 U.S.C. 5 1915(e)(l), however, the Court may 

request an attorney to represent any person unable to afford counsel. In this case, Plaintiff has 

already demonstrated that he is unable to afford counsel; his application to proceed in forma 

pauperis was granted on April 19,2007. (See Dkt. 1 .) 

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"In deciding whether to appoint counsel, . . . [a] district [court] should first determine 

whether the indigent's position seems likely to be of substance." Hendricks v. Coughlin, 1 14 

F.3d 390,392 (2d Cir. 1997) (quoting Hodge v. Police Oflcers, 802 F.2d 58, 61-62 (2d Cir. 

1986)). In order to make such a determination, the Court must decide whether, "from the face of 

the pleading[s]," Stewart v. McMickens, 677 F. Supp. 226, 228 (S.D.N.Y. 1988), the claims 

asserted by the plaintiff "may have merit," or the plaintiff "appears to have some chance of 

success." Baskewille v. Goord, No. 97 Civ. 6413 (BSJ) (KNF), 2001 WL 527479, at * 1 

(S.D.N.Y. May 16,2001) (quotation marks and citations omitted); see also Hodge, 802 F.2d at 

60-61. While the Court should not appoint counsel "indiscriminately" just because an indigent 

litigant makes such a request, it is not necessary for the plaintiff to demonstrate that his claims 

will survive a motion to dismiss or a motion for summary judgment; rather, the Court must only 

find that the claims satisfy a "threshold showing of merit." Hendricks, 114 F.3d at 393-94. 

In this case, Plaintiff has offered detailed factual allegations in support of his claim that 

he was involuntarily exposed to second-hand smoke while incarcerated at Fishkill, and his 

Complaint has already partially survived a motion to dismiss. Thus, the Complaint plainly has 

"some chance of success," and Plaintiff has accordingly satisfied the requirement that he make a 

"threshold showing of merit." See Cooper v. A. Sargenti Co., Inc., 877 F.2d 170 (2d Cir. 1989). 

Where a plaintiff satisfies the threshold requirement of demonstrating that his position is 

likely to be of substance, the Court should go on to consider: (1) the plaintiffs ability to 

investigate the crucial facts; (2) whether conflicting evidence implicating the need for crossexamination will be the major proof presented to the fact-finder; (3) the plaintiffs ability to 

present the case; (4) the complexity of the legal issues; and (5) any special reason in the case 

Case 1:07-cv-03225-PKC-DCF Document 36 Filed 02/27/2008 Page 3 of 6
why appointment of counsel would be more likely to lead to a just determination. See Hodge, 

802 F.2d at 61-62; see also Hendricks, 114 F.3d at 394-95 (citing Hodge). The Court should 

also consider whether the plaintiff has attempted to obtain a lawyer, and whether a lawyer is 

available to assist the plaintiff. See Cooper, 877 F.2d at 172. 

Here, Plaintiff states that he "does not have the expertise or legal skills to bring forth . . . 

key evidence, such as documents, statistics, and other relevant material" and that Defendants 

"will . . . request documents and confidential information that requires the guiding hand of 

counsel." (Plaintiffs Application for Appointment of Counsel (Dkt. 1 I), at 1.) Plaintiffs 

general assertion, however, that he "does not have the expertise or legal skills" (id.) is not 

sufficient, in itself, to justify a request for counsel. 

Plaintiff has made no showing that he is incapable of investigating the facts of this case 

or conducting discovery. Not only is Plaintiff no longer incarcerated, but he has served specific 

document requests and has explained to the Court in detail the nature of the evidence he seeks in 

order to support his claims. He has also demonstrated a familiarity with how much of the 

documentary evidence he seeks is maintained within Fishkill, and has pointed opposing counsel 

to the sources of relevant, discoverable information. He has also identified witnesses with 

knowledge of his claims and made discovery requests for statements believed to have been made 

by these witnesses. He has also responded to Defendants' discovery demands and has shown a 

willingness to cooperate with Defendants' counsel in the discovery process. 

Plaintiff has also demonstrated an ability to represent himself effectively to date. 

Plaintiff has appeared in Court for status conferences, has participated fully in those conferences, 

has articulated his positions on discovery issues, and has responded appropriately to questioning 

by the Court regarding his positions. Plaintiff has also submitted opposition papers on the 

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motions challenging the Complaint, demonstrating an ability to meet the Court's procedural 

requirements and to set forth argument on substantive issues of law. The Court also notes that 

the legal and factual issues that remain in this case - regarding the enforcement or lack of 

enforcement of the non-smoking ban in Plaintiffs former housing unit - do not appear to be 

overly complex. Nor has the Court seen any indication, at least at this time, that the major 

evidence in the case will be in conflict, implicating the need for cross-examination. 

Plaintiff has also not shown any special reason why pro bono counsel should be 

requested for him in this case. He has not shown that he has any language difficulties, for 

example, or mental health problems, or that he lives in an environment that restricts his ability to 

investigate his claims, or that there is any other particular reason why counsel is particularly 

needed for this case to reach a just resolution. Finally, Plaintiff has not demonstrated that he has 

made significant efforts to locate counsel on his own, and the Court notes that he may yet have 

success in doing so, now that he has been released from custody. 

Upon considering all the relevant factors, the Court concludes that an order requesting 

that counsel take on this case would not be warranted at this time. Plaintiffs motion is therefore 

denied, without prejudice to Plaintiffs right to renew his application, should complex issues be 

raised on any summary judgment motion, or should the case reach the trial stage. Further, if at 

any time it becomes more apparent to the Court that Plaintiff is not able to proceed effectively 

without the assistance of counsel, then the Court may reconsider whether to request pro bono 

counsel to assist him. Prior to any renewed application for counsel, however, Plaintiff should 

make further efforts to obtain an attorney on his own and be prepared to demonstrate the extent 

of such efforts. 

Case 1:07-cv-03225-PKC-DCF Document 36 Filed 02/27/2008 Page 5 of 6
CONCLUSION 

For all of the above reasons, Plaintiffs application for the Court to request counsel is 

denied without prejudice. 

Dated: IVew York, New York 

February 27,2008 

SO ORDERED 

c ' 

/kltdA//L 

DEBRA FREEMAN 

United States Magistrate Judge 

Copies to: 

Hon. P. Kevin Castel, U.S.D.J. 

Mr. Nurideen Islam, pro se 

C/O Janie Bowens 

875 Pennsylvania Ave., #3H 

Brooklyn, NY 11207 

Jeb Harben, Esq. 

Assistant Attorney General 

1 00 Church St., 

New York, NY 10007 

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