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United States District Court, S.D. New York

May 14, 2004.


The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge


In this putative class action, commenced by pro se plaintiffs Ada Rodriguez, Marlene Betancourt, Rafael Fuertes Vargas, and Alberto Betancourt (collectively, "Plaintiffs"), Plaintiffs move to proceed in forma pauperis and to have the Court request pro bono counsel to represent them. For the reasons discussed below, the motion to proceed in forma pauperis is granted, although, at this time, the Court directs that the pleadings only be served upon certain named defendants, as set forth below. Plaintiffs' application for counsel is denied without prejudice.


  In this action, brought under numerous provisions of the federal and New York state constitutions and various civil rights statutes, Plaintiffs, who describe themselves as constituting a "minority famil[y] of Hispanic and low income background" (Complaint ("Compl."), dated May 27, 2003 (Dkt. 1) ¶ 233), essentially complain that Columbia University, as their landlord, in taking steps to convert the building in which they reside to institutional use and thereby evict them from their home, has violated various laws and discriminated against them based on their minority status (see, e.g., id. ¶ 236, 240-45). Plaintiffs purport to bring this action on their own behalf and on behalf of other minority families similarly facing allegedly unlawful eviction.

  Plaintiffs assert that they cannot afford to prosecute this case without at least some assistance. Specifically, Plaintiffs state that, given the length of the Complaint (which consists of 799 numbered paragraphs in 301 pages, plus more than 300 additional pages of attached exhibits), they cannot afford to make sufficient copies of it to be served on the named defendants. Further, having named as defendants 53 private or governmental entities or individuals, plus a number of "John Does," Plaintiffs maintain that, unless they are granted leave to proceed in forma pauperis, and thus receive the assistance of the United States Marshal in effectuating service of process, they will be unable, through lack of resources, to serve the Complaint on all defendants and proceed with this case. In a joint submission, each of the Plaintiffs has separately submitted a signed "Request to Proceed In Forma Pauperis" setting forth the details of his or her financial situation. ((See Dkt. 5.)

  Plaintiffs further state that, although one of them, Alberto Betancourt, has been studying the law on his own for some time, he has never attended law school, is not an attorney, and is not sufficiently familiar with the areas of law implicated in this case to enable him to assist his family effectively in pursuing this matter without counsel. (See Supplemental Declaration in Support of Plaintiff's Request to Proceed In Forma Pauperis and for Assigned Counsel ("Supp. Decl."), dated October 22, 2003 (Dkt. 6) at 3.) Plaintiffs assert that they have made substantial efforts to obtain counsel, but have been unsuccessful. (Id. at 1-2.) Stating that they do not have the "ecomonic, political and legal means and familiarity with the law required to prosecute a case of this magnitude on their own," Plaintiffs ask that the Court request pro bono counsel to represent them. (Id. at 2.)



  Although Plaintiffs have already paid the filing fee necessary to commence this action (see Dkt. 1), they have nonetheless requested that the Court grant them in forma pauperis status so that the United States Marshal may help them effectuate service. Under 28 U.S.C. § 1915, the Court may grant in forma pauperis status where a plaintiff has submitted an affidavit detailing his or her financial situation, as well as the nature of the action and the affiant's belief that he or she is entitled to relief.

  In this case, the Court has received affidavits from plaintiffs Ada Rodriquez, Marlene Betancourt, Rafael Fuertes Vargas, and Alberto Betancourt, detailing the limited income each has received in the last year, their monthly rent and other financial obligations, and special hardship circumstances that have rendered them "economically impoverished." (See Requests to Proceed In Forma Pauperis filed October 15, 2003 (Dkt. 5).) In addition, Plaintiffs have submitted a supplemental declaration, detailing additional reasons for granting them in forma pauperis statuts. (See Supp. Decl.) As Plaintiffs' showings are sufficient to demonstrate that they are indigent, their application to proceed in this case in forma pauperis is granted, although, since Plaintiffs have already paid the filing fee, the application is granted only for the purpose of permitting them to obtain the assistance of the United States Marshal in serving the Complaint on the defendants. See 28 U.S.C. § 1915(d) (where plaintiff proceeds in forma pauperis, "[t]he officers of the court shall issue and serve all process"); see also, e.g., Livingston v. Adirondack Beverage Co., 141 F.3d 434, 436 (2d Cir. 1998) (where application of pro se plaintiff to proceed in forma pauperis had been granted, Clerk was ordered to forward the summons and complaint to the United States Marshal for proper service).

  The Court notes, however, that, just as it would pose a burden for Plaintiffs to have to copy and serve their overly-voluminous Complaint*fn1 on all of the many named defendants, so too would this burden the Marshal. Based on the Court's rough calculation, if enough copies of the Complaint were made to serve all named defendants, and if those copies were stacked in a pile, the pile would contain approximately 32,000 pages and would stand about 13 feet high. Further, individualized service on each defendant may not be necessary in this case. Defendant Columbia University, for example, may well be willing to accept service on behalf of its Trustees (all of whom are separately named as defendants), which would obviate the need for the Marshal's office to locate and serve each Trustee individually. Plaintiffs have also named as defendants numerous federal, state and local agencies, and it may not be necessary to serve each of those defendants separately, if the United States Attorney's Office, the New York State Attorney General's Office, and the office of the New York City Corporation Counsel were to consent to accept service on their behalf.

  Accordingly, at this time, Plaintiffs may seek the assistance of the United States Marshal only with respect to service of the Summons and Complaint on: (1) Columbia University, (2) the United States Attorney's Office, (3) the New York State Attorney General's Office, and (4) the Office of the New York City Corporation Counsel.


  A case may not proceed as a class action if plaintiffs are proceeding pro se. See, e.g., McCleod v. Crosson, No, 89 Civ. 1952 (CSH), 1989 WL 28416, at *1 (S.D.N.Y. Mar. 21, 1989) ("It is well established in this circuit that pro se plaintiffs cannot act as class representatives. They do not satisfy the requirements of Rule 23(a)(4)."). Nor will this Court entertain an application for the appointment of class counsel. In the situation presented, however, the Court will deem Plaintiffs' application as a request for the Court to seek pro bono counsel to represent them on an individual basis, and will consider the application in that light. See, e.g., Devlin v. Transportation Communications Int'l Union, No. 95 Civ.0754 (JFK), 2002 WL 413919, at *2 (S.D.N.Y. Mar. 14, 2002) (given that plaintiffs had not moved for class certification and were acting pro se, the court would consider plaintiffs as individuals and not as a class).

  Unlike criminal defendants, indigents filing civil actions have no constitutional right to counsel. Barzey v. Daley, No. 99 Civ. 11917 (BSJ) (KNF), 2000 WL 959713 (S.D.N.Y. July 11, 2000). The Court may, however, under 28 U.S.C. § 1915(e)(1), request an attorney to represent any person unable to afford counsel. As described above in connection with Plaintiffs' application to proceed in forma pauperis, Plaintiffs here have demonstrated that they are indigent and cannot afford counsel.

  "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, 114 F.3d 390, 392 (2d Cir. 1997) (quoting Hodge v. Police Officers, 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 pleadings," Stewart v. McMikens, 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." Baskerville v. Goord, No. 97 Civ. 6413 (BSJ) (KNF), 2001 WL 527479, at *1 (S.D.N.Y. May 16, 2001) (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 find that the claims satisfy a "threshold showing of merit." Hendricks, 114 F.3d at 393-94.

  In this case, Plaintiffs have pleaded 49 separate claims, and although many, on their face, are of questionable merit and may not survive a motion to dismiss, the Court cannot say at this time that none has any chance of success. Thus, the Court finds that Plantiffs have satisfied the fairly minimal requirement that they 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 its position is likely to be of substance, the Court should then consider: (1) the plaintiff'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 plaintiffs ability to present the case; (4) the complexity of the legal issues; and (5) any special reason in the case 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. 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, Plaintiffs have, to date, demonstrated a substantial ability to investigate and present the relevant facts. The Complaint, and attachments thereto, contain a significant amount of detail and show an intimate familiarity with the long history underlying this action. Should Plaintiffs be required to elicit facts through cross-examination, Plaintiffs' care, to date, in detailing "the facts and circumstances surrounding [their] claims indicates to the Court that plaintiff[s] will be able to frame questions to elicit responses pertinent to the prosecution of the action." Harris v. Totten (SHS) (KNF), 2002 WL 230849, at *2 (S.D.N.Y. Feb. 15, 2002). Further, Plaintiffs generally appear capable of understanding and presenting relevant legal issues, see Hodge, 802 F.2d at 61-62, as demonstrated by their motion papers and related correspondence to the Court, in which they have quoted statutes and case law, and argued articulately on behalf of their position on this motion (see, generally, Supp. Decl.).

  Moreover, although any civil rights claims can be said to be "complex," Plaintiffs' essential complaint is that they have been treated badly and unfairly by their landlord, Columbia University. That basic grievance is not complicated, even if Plaintiffs have challenged the University's conduct under a number of constitutional and statutory provisions. In any event, any complexity inherent in Plaintiffs' claims is lessened if those claims are considered on an individual, rather than a class basis. Plaintiffs have also offered no special reason why appointment of counsel in this case would increase the likelihood of a just determination.

  Finally, although Plaintiffs have apparently made an effort to obtain counsel (see Supp. Decl. at 1-2), it is not clear that they have made all possible efforts in that regard, as evidenced by their request that, if the Court should deny their request for counsel, they be afforded an additional period of time to attempt to locate counsel on their own (see id. at 4).

  Considering all of these factors, the Court finds that, at this time, a request by the Court for the assignment of pro bono counsel is not warranted in order for a just determination to be reached in this action.


  For the foregoing reasons, Plaintiffs' application for leave to proceed in forma pauperis is granted, although the role of the United States Marshal shall be limited at this time, as described above. Plaintiffs' application for counsel is denied without prejudice to renew the application, should future developments in the case significantly impact on Plaintiffs' ability to represent themselves.


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