United States District Court, S.D. New York
ORDER DENYING REQUEST FOR PRO BONO COUNSEL
GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE
has filed an Application for the Court to Request Counsel.
For the following reasons, Plaintiff's application is
in forma pauperis statute provides that the courts
“may request an attorney to represent any person unable
to afford counsel.” 28 U.S.C. § 1915(e)(1). Unlike
in criminal cases, in civil cases, there is no requirement
that courts supply indigent litigants with counsel. Hodge
v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986).
Instead, the courts have “broad discretion” when
deciding whether to grant an indigent litigant's request
for representation. Id. Even if a court does believe
that a litigant should have a lawyer, under the in forma
pauperis statute, a court has no authority to
“appoint” counsel, but instead, may only
“request” that an attorney volunteer to represent
a litigant. Mallard v. U.S. Dist. Court for the S. Dist.
of Iowa, 490 U.S. 296, 301-310 (1989). Moreover, courts
do not have funds to pay counsel in civil matters. Courts
must therefore grant applications for counsel sparingly, and
with reference to public benefit, in order to preserve the
“precious commodity” of volunteer-lawyer time for
those litigants whose causes are truly deserving. Cooper
v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir.
Hodge, the Second Circuit set forth the factors a
court should consider in deciding whether to grant a
litigant's request for counsel. 802 F.2d at 61-62. Of
course, the litigant must first demonstrate that he or she is
indigent, see Terminate Control Corp. v. Horowitz,
28 F.3d 1335, 1341 (2d Cir. 1994), for example, by
successfully applying for leave to proceed in forma
pauperis. The court must then consider whether the
litigant's claim “seems likely to be of
substance” - “a requirement that must be taken
seriously.” Id. at 60-61 . If these threshold
requirements are met, the court must next consider such
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
in that case why appointment of counsel would be more likely
to lead to a just determination.
Id.; see also Cooper, 877 F.2d at 172
(listing factors courts should consider, including
litigant's efforts to obtain counsel). In considering
these factors, district courts should neither apply
bright-line rules nor automatically deny the request for
counsel until the application has survived a dispositive
motion. See Hendricks v. Coughlin, 114 F.3d 390,
392-93 (2d Cir. 1997). Rather, each application must be
decided on its own facts. See Hodge, 802 F.2d at 61.
filed a Request to Proceed in Forma Pauperis (IFP),
which the Court granted. (See Order dated July 12,
2018, ECF No. 5.) When Plaintiff filed his Application for
the Court to Request Counsel, however, Plaintiff affirmed
that he had not previously filed an IFP application in this
case and would be attaching an original IFP application.
(See Application for the Court to Request Counsel,
ECF No. 53.) Plaintiff did not attach such an application,
and ther Court cannot therefore determine whether his
financial status has changed in the interim.
complaint, Plaintiff asserts a claim under 42 U.S.C. §
1983, alleging that, while opening up a pantry, Corrections
Officer Roberta Molina “didn't like what”
Plaintiff said to him and sprayed him with OC gas, leaving
him with partial vision loss in his left eye and causing an
asthma attack. (Complaint, ECF No. 2.) Defendants moved for
summary judgment on several grounds, asserting that the
evidence establishes (i) that Officer Molina's use of OC
spray was objectively reasonable, (ii) Plaintiff's
purported injuries do not rise to the level of a
constitutional violation, and (iii) that Officer Molina is
entitled to qualified immunity.
reviewed the evidence presented in Defendants' motion for
summary judgment, specifically the video evidence, the Court
does not find that Plaintiff's claim is “likely to
be of substance.” Hodge, 802 F.2d 61-62;
Scott v. Harris, 550 U.S. 372, 380 (2007)
(“When opposing parties tell two different stories, one
of which is blatantly contradicted by the [video] record, so
that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a
motion for summary judgment.”)
Court similarly finds that the other Hodge factors
weigh against granting Plaintiff's application. Although
Plaintiff asserts that he has contacted one law firm for
assistance with his representation, it is not apparent that
he will require counsel at this point to investigate crucial
facts. And the legal issues involved in this case are not
sufficiently complex to require the appointment of counsel.
Thus, even if the Court could ascertain that Plaintiff's
indigent status had not changed, representation would not
“lead to a quicker and more just result by sharpening
the issues and shaping examination.” Hodge,
802 F.2d at 61.
foregoing reasons, Plaintiff's Application for the Court
to Request Counsel is denied. Denial of Plaintiff's
request is without prejudice to Plaintiff's renewed
application later in the case. The Court certifies under 28
U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore IFP status is
denied for the purpose of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
Clerk of Court is directed to terminate the motion pending at
docket number 53. The Clerk of Court is further directed to
mail a copy of this order ...