Getman v. Vondracek

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DEREK GETMAN,
Plaintiff,
Case # 20-CV-6999-FPG
v.
DECISION AND ORDER
J. VONDRACEK,
Defendant.
INTRODUCTION
Pro se Plaintiff Derek Getman brings this action pursuant to 42 U.S.C. § 1983 seeking
redress for alleged constitutional violations that occurred while he was confined at the Elmira
Correctional Facility. ECF Nos. 1, 9. Before the Court is Plaintiff’s motion to appoint counsel.
ECF No. 99. Plaintiff has previously moved for appointment of counsel four times. ECF Nos. 5,
10, 42, 76. The first two motions were denied as premature, ECF Nos. 6, 11, and the third and
fourth were denied after the Court found no special circumstances warranting appointment of
counsel, ECF Nos. 43, 79. For the reasons below, Plaintiff’s present motion is DENIED.
DISCUSSION
Plaintiff requests that the Court appoint him counsel because he cannot afford an attorney,
is not knowledgeable with court proceedings and questioning of witnesses, and will not be able to
meet this Court’s deadlines “as the defendant hasn’t provided to [him] still the photo or review of
the O.S.I file.” ECF No. 99.
Although there is no constitutional right to appointed counsel in civil cases, the Court may
appoint counsel to assist indigent litigants under 28 U.S.C. § 1915(e). See, e.g., Sears, Roebuck &
Co. v. Charles Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). The assignment of counsel
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in civil cases is within the Court’s discretion. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir.
1984). The Court must consider the issue of appointment carefully because “every assignment of
a volunteer lawyer […] deprives society of a volunteer lawyer available for a deserving cause.”
Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). In determining whether to assign
counsel, the Court considers whether the indigent’s claims seem likely to be of substance; the
indigent’s ability to investigate the crucial facts; whether conflicting evidence implicating the need
for cross-examination will be the major proof presented to the fact finder; the indigent’s ability to
present the case; the complexity of the legal issues; and any special reason why appointment of
counsel would be more likely to lead to a just determination. See Hendricks v. Coughlin, 114 F.3d
390, 392 (2d Cir. 1997); Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986).
With this in mind, the Court finds that appointment of counsel is not warranted. 	As the
Court stated in its previous orders denying counsel, ECF Nos. 43, 79, this case is not overly
complex, with the Court having identified only one claim: an excessive-force claim against
Defendant Vondracek, see generally ECF No. 89. Plaintiff has, thus far, shown himself capable
of presenting and arguing his claims without an attorney, and he has not offered any new reasons
for appointment of counsel that the Court did not already reject in its prior order. See ECF No. 43.
Regarding Plaintiff’s argument that Defendant has denied access to the requested photos and O.S.I.
file, the Court notes Defendant’s response that defense counsel is arranging for Plaintiff to review
the O.S.I. file before the end of January and that a copy of the photograph was mailed to Plaintiff
on January 9, 2026. ECF Nos. 101, 102. Accordingly, Plaintiff is considered capable of obtaining
the material without the appointment of counsel.
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CONCLUSION
For the reasons stated above, Plaintiff’s Motion to Appoint Counsel, ECF No. 99, is
DENIED.
IT IS SO ORDERED.
Dated: January 15, 2026
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
United States District Judge
Western District of New York
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