United States District Court, S.D. New York
May 14, 2004.
ADA RODRIGUEZ, MARLENE BETANCOURT, RAFAEL FUERTES VARGAS, and ALBERTO BETANCOURT, and all others similarly situated or affected, et al., Plaintiffs, -against- THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, a/k/a COLUMBIA UNIVERSITY, et al., Defendants
The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge
MEMORANDUM AND ORDER
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.
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.)
I. PLAINTIFFS' APPLICATION TO PROCEED IN FORMA PAUPERIS
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
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.
II. PLAINTIFFS' APPLICATION FOR 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
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.
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
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.