Opinion
09 CIV. 2636 (PAC) (KNF).
March 8, 2010
MEMORANDUM and ORDER
I. INTRODUCTION
The plaintiff, Yusef Green ("Green"), proceeding pro se and in forma pauperis, initiated this action, pursuant to 42 U.S.C. § 1983, on March 23, 2009. On October 28, 2009, Green filed an amended complaint, alleging the defendants, New York City police officers Gonzalez ("Gonzalez") and Latraviota Wells ("Wells"), violated his constitutional rights by: (1) engaging in racial profiling; (2) stopping and searching his vehicle unlawfully; (3) arresting him without probable cause; and (4) denying him the ability to speak with counsel, after his arrest. Before the Court is Green's request that the Court appoint counsel to assist him in prosecuting this action.
II. BACKGROUND
In his amended complaint, Green alleges that, on March 16, 2007, Gonzalez and Wells stopped Green's vehicle, while he was driving on an expressway service road. Gonzalez cited three traffic violations as grounds for the stop, including double parking, reckless driving and speeding. Green contends these grounds were pretextual, proffered to conceal the truth: that he was racially profiled. Green maintains that Gonzalez ordered him to step outside his car, after Green failed to produce a vehicle registration card. According to Green, Gonzalez proceeded to search Green's vehicle, before arresting him. The officers took Green to a police precinct, where Green agreed to submit to a breathalyzer examination, but only in the presence of his attorney. Green contends he was not allowed to call his attorney and, therefore, declined to submit to a breathalyzer examination. Green was subsequently charged with driving while intoxicated, but the Bronx County Supreme Court dismissed the charge. Green seeks monetary damages for the injuries arising from his arrest.
Green is incarcerated at a federal jail facility in Brooklyn, New York. In his request for counsel, Green alleges he does not have access to a computer or up-to-date legal periodicals, preventing him from prosecuting his case effectively. In a financial affidavit, submitted in support of his request, Green avers he receives money from his mother, monthly, to pay for commissary purchases and telephone usage. Green's mother provides him with "whatever she can `financially'" afford each month, though Green does not provide an estimate of the amount. As to his expenses, Green purports to "try to pay [his] ex-wife monthly child support of $50.00 for [his] two daughters[.]"
In his request for counsel, Green alleges further that he attempted to engage counsel, prior to making the instant application. Specifically, Green contends he has "written [to] the NYS Bar Association, the New York County Lawyers' Association, the Westchester County Bar Association and the Bronx County Bar Association[.]" According to Green, the organizations provided him the names of attorneys, to whom he has written, but received no reply.
III. DISCUSSION
Civil litigants have no constitutional right to counsel. See United States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981), cert. denied, 456 U.S. 916, 102 S. Ct. 1771 (1982). However, 28 U.S.C. § 1915(e)(1) authorizes a district court to "request an attorney to represent any person unable to afford counsel." "[I]t is clear that the statute only allows appointment [of counsel] where a litigant is indigent." Sears, Roebuck and Co. v. Charles W. Sears Real Estate, 865 F.2d 22, 23 (2d Cir. 1988) (affirming district court decision to refuse to appoint counsel for plaintiff denied in forma pauperis status). Moreover, an indigent must "be unable to obtain counsel before appointment will even be considered" under 28 U.S.C. § 1915. Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986), cert. denied, 502 U.S. 986, 112 S. Ct. 596 (1991). The district court "must [] ascertain whether the litigant is able to afford or otherwise obtain counsel" before assessing the merits of an application for appointment of counsel. Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994).
In the instant case, the court has twice granted Green in forma pauperis status. Therefore, he is within the class of persons contemplated by 28 U.S.C. § 1915(e)(1). See Sears, 865 F.2d at 24. Moreover, Green has, by affidavit, represented to the Court, that he has, independently, attempted to engage counsel, prior to making the instant application, but to no avail. Under these circumstances, it is appropriate to consider Green's application.See Hodge, 802 F.2d at 61.
Green first received in forma pauperis status in a March 23, 2009 order, dismissing this action, without prejudice, pursuant to Fed.R.Civ.P. 41(a). In a September 30, 2009 order, re-opening this action and granting the plaintiff leave to file his amended complaint, the court again granted Green's request to proceed in forma pauperis.
"In deciding whether to appoint counsel, [a] district [court] should first determine whether the indigent's position seems likely to be of substance." Hodge, 802 F.2d at 61. This means that it appears to the court "from the face of the pleading[s],"see Stewart v. McMickens, 677 F. Supp. 226, 228 (S.D.N.Y. 1988), that the claim(s) asserted by the plaintiff may have some merit, or that the plaintiff "appears to have some chance of success. . . ." Hodge, 802 F.2d at 60-61. The pleadings drafted by a pro se litigant, such as Green, are to be construed liberally and interpreted to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Only if a plaintiff satisfies the threshold "test of likely merit," should a court consider "secondary criteria." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir. 1989). These criteria include: (1) the indigent'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 indigent's ability to present the case; (4) the complexity of the legal issues; and (5) any special reason in that case why appointment of counsel would be more likely to lead to a just determination. Hodge, 802 F.2d at 61-62.
Interpreting the plaintiff's pleadings liberally, the Court understands Green to be asserting claims for violations of the Fourth, Fifth and Fourteenth Amendments. From the face of the pleadings, the Court finds Green has not surmounted the initial hurdle of demonstrating any of his claims have merit.
A. Alleged Fourth Amendment Violations
To the extent Green claims Gonzalez and Wells violated his Fourth Amendment right, to be free from "unreasonable searches and seizures," his claim appears meritless. Though stopping a vehicle constitutes a "seizure" within the meaning of the Fourth Amendment, Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396 (1979), "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772 (1996). There is "probable cause to stop and arrest" where a police officer "directly observe[s]" a driver violating traffic laws. United States v. Scopo, 19 F.3d 777, 782 (2d Cir. 1994) (finding police had probable cause to arrest defendant for "not signalling lane changes"), cert. denied, 513 U.S. 877, 115 S. Ct. 207 (1994). Once the police have probable cause to stop and arrest a driver, "they [are] entitled to search both him and his `grab space' in the car[.]" Id.
Based on Green's pleadings, it appears Gonzalez and Wells observed the plaintiff violating several traffic laws, providing them with probable cause to stop Green's vehicle. Though Green contends the reasons cited by Gonzalez, for stopping Green's vehicle, were pretextual, the Supreme Court has held that "ulterior motive[s]" do not strip police officers of their legal justifications for making traffic stops. See Whren, 517 U.S. at 812, 116 S. Ct. at 1774. "[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment." Id., 517 U.S. at 813, 116 S. Ct. at 1774.
When an automobile is stopped for observed traffic violations, "licenses and registration papers are subject to inspection and drivers without them will be ascertained." Prouse, 440 U.S. at 659, 99 S. Ct. at 1399. Green was unable to produce a vehicle registration card, upon Gonzalez's request. See United States v. Jenkins, 496 F.2d 57, 72 (2d Cir. 1974) (finding state trooper had probable cause to believe vehicle was stolen when, inter alia, driver could not produce a registration certificate), cert. denied, 420 U.S. 925, 95 S. Ct. 1119 (1975). "Under New York State law, it is clear that a traffic offense can be a basis for an arrest." Scopo, 19 F.3d at 785.
Based on the information provided in Green's amended complaint, it appears Gonzalez and Wells likely had probable cause to stop and arrest Green. Armed with probable cause to arrest Green, Gonzalez's search of Green's vehicle, though prior to Green's formal arrest, appears to have been a lawful search incident to arrest. See Jenkins, 496 F.2d at 73 (finding search prior to arrest to be lawful "as long as probable cause to arrest existed at the time of the search"); see generally Thornton v. United States, 541 U.S. 615, 617, 124 S. Ct. 2127, 2129 (2004) (holding search of vehicle's passenger compartment to be contemporaneous incident of arrest, though driver arrested outside vehicle).
B. Alleged Fifth Amendment Violation
The Court construes Green's allegation that his request to call his attorney was denied, after his arrest, but prior to being charged, as a claim for violating Green's Fifth Amendment rights. However, insofar as the defendants may have denied the plaintiff's demand for counsel, thereby violating his Fifth Amendment privilege against self-incrimination, the plaintiff's remedy would have been "the exclusion from evidence of any ensuing self-incriminating statements. . . . not a [42 U.S.C.] § 1983 action." Neighbour v. Covert, 68 F.3d 1508, 1510 (2d Cir. 1995) (citations omitted), cert. denied, 516 U.S. 1174, 116 S. Ct. 1267 (1996). The plaintiff does not allege the defendants elicited any incriminating statements from him, after denying his demand for an attorney. Even if he had, his claim for recovery, under 42 U.S.C. § 1983, would likely fail, as a matter of law.
C. Alleged Fourteenth Amendment Violation
Green's claim, that Gonzalez and Wells subjected him to racial profiling, is best understood as a claim for violating the Equal Protection Clause of the Fourteenth Amendment. "To state a race-based claim under the Equal Protection Clause, a plaintiff must allege that a government actor intentionally discriminated against him on the basis of his race." Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000), cert. denied, 534 U.S. 816, 122 S. Ct. 44 (2001). Green's claim for racial discrimination appears without merit, because he has failed to allege, in his amended complaint, he is a member of a protected class. See Seabrook v. City of New York, 509 F. Supp. 2d 393, 400 (S.D.N.Y. 2007). Even if he had made such an allegation, a claimant alleging selective arrest, as Green is, must also allege "the existence of a similarly situated group of non-minority individuals that were treated differently[.]" Brown, 221 F.3d at 337. Green has made no such allegations; rather, he simply declares himself to be a victim of racial profiling. Without more detailed allegations, the Court cannot conclude the plaintiff's claim is likely to be meritorious. See Cooper, 877 F.2d at 172 (holding court should not grant applications for appointment of counsel "indiscriminately").
V. CONCLUSION
For the reasons stated above, the plaintiff's request, that the Court appoint counsel to represent him, Docket Entry No. 10, is denied.
SO ORDERED: