United States District Court, E.D. New York
Brenda Justice, Mother for Hitlier Justice, Plaintiff, Pro se, Astoria, NY.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge.
Plaintiff Brenda Justice, proceeding pro se, filed the above-captioned action in this Court, and moved to proceed in forma pauperis . (Docket Entry Nos. 1, 3.) By order dated February 22, 2013, the Court
granted Plaintiff's motion to proceed in forma pauperis, and gave Plaintiff leave to amend her Complaint. (Docket Entry No. 5.) Plaintiff filed an Amended Complaint on March 22, 2013, and by Memorandum and Order dated April 22, 2013, the Court gave Plaintiff leave to proceed solely as to the false arrest claim against Defendants Richard Kuhnapfel and Greg Holme. (Docket Entry No. 17.) On August 1, 2013, Plaintiff filed a motion to appoint counsel and a second motion to proceed in forma pauperis . (Docket Entry No. 33.) For the reasons set forth below, Plaintiff's motion to appoint counsel is denied. Plaintiff's motion to proceed in forma pauperis is denied as moot.
I. Motion to Appoint Counsel
Although the Constitution guarantees criminal defendants a right to counsel in their criminal case, there is no constitutional right to counsel in a civil case. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). " As a result, there is no panel of government-funded attorneys available to be appointed to represent litigants in civil cases." Jenkins v. Morris, No. 11-CV-4178, 2012 WL 1887134, at *4 (E.D.N.Y. May 23, 2012). A court cannot compel an attorney to take a civil case without a fee, Mallard v. United States District Court, 490 U.S. 296, 310, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), but it may " request an attorney to represent any person unable to afford counsel," 28 U.S.C. § 1915(e)(1).
In deciding whether to grant a request for counsel, the Court must " first determine whether the indigent's position [is] likely to be of substance." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989) (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986) (internal quotation marks omitted)); see also Johnston v. Maha, 606 F.3d 39, 41 (2d Cir. 2010) (motions for appointment of counsel considered " by asking first whether the claimant has met a threshold showing of some likelihood of merit." (citation and internal quotation marks omitted)); Phelan v. Sullivan, 541 F.Appx. 21, 25, 2013 WL 5183664, at * 3-4 (2d Cir. Sept. 17, 2013) (affirming district court denial of motion for appointment of counsel because plaintiff " had not demonstrated that his claims were likely to succeed on the merits" (citing Cooper, 877 F.2d at 172)); Parks v. Smith, 505 F.Appx. 42, 43 (2d Cir. 2012) (" In considering a motion to appoint counsel, a district court 'should first determine whether the indigent's position [is] likely to be of substance.'" (quoting Cooper, 877 F.2d at 172)); Ferrelli v. River Manor Health Care Center, 323 F.3d 196 (2d Cir. 2003) (citing Hodge and Cooper to reiterate that a district court must first determine whether plaintiff is likely to succeed on the merits of the claim when assessing whether to appoint counsel).
If the Court determines that the claim meets this threshold requirement, then the Court can " consider the other factors appropriate to determination of whether counsel should be appointed." Wiggins v. Vega, No. 13-CV-2037, 2013 WL 5700970, at *1 (S.D.N.Y. Oct. 17, 2013) (citing Hodge, 802 F.2d at 60-61)). These criteria include: the " plaintiff's ability to obtain representation independently, and his ability to handle the case without assistance in the light of the required factual investigation, the complexity of the legal issues, and the need for expertly conducted cross-examination to test veracity." Cooper, 877 F.2d at 172 (quoting Hodge, 802 F.2d at 61-62).
a. Plaintiff has No Likelihood of Success on the Merits
In this case, Plaintiff has no likelihood of succeeding on the merits of her claim. As discussed in the November 4,
2013 Order adopting Magistrate Judge Levy's Report and Recommendation, Plaintiff is unlikely to prevail on her underlying claim for false arrest because there was a facially valid warrant for Plaintiff's arrest. (Docket Entry No. 50, Memorandum & Order dated Nov. 5, 2013 at 7-10.) Because a facially valid warrant is a " complete defense" to a claim of false arrest, Plaintiff cannot show that there is some likelihood that she may prevail in this action. ( Id. at 8-10); see also Southerland v. Garcia, 483 F.Appx. 606, 608 (2d Cir. 2012) (" An arrest pursuant to a facially valid warrant is normally a complete defense to a federal constitutional claim for false arrest or false imprisonment made pursuant to § 1983." (quoting Voyticky v. Village of Timberlake, 412 F.3d 669, 677 (6th Cir. 2005))). Because Plaintiff is unlikely to succeed on the merits of her claim, Plaintiff does not meet the " threshold requirement" that would require the Court to consider whether Plaintiff satisfies the other criteria. See Phelan, 541F. App'x at 25, 2013 WL 5183664, at *3 (finding that district court " properly denied Phelan's motion for appointment of counsel after concluding that Phelan had not demonstrated that his claims were likely ...