Opinion
05 Civ. 8426 (SHS) (HBP).
July 6, 2006
MEMORANDUM OPINION AND ORDER
By motion dated January 13, 2006 (Docket Item 16) plaintiff, who is incarcerated, moves for pro bono counsel. For the reasons set forth below, the motion is denied without prejudice to renewal.
In a civil case, such as this, the Court cannot actually "appoint" counsel for a litigant. Rather, in appropriate cases, the Court submits the case to a panel of volunteer attorneys. The members of the panel consider the case, and each decides whether he or she will volunteer to represent the plaintiff. If no panel member agrees to represent the plaintiff, there is nothing more the Court can do. See generally Mallard v. United States District Court, 490 U.S. 296 (1989). Thus, even in cases where the Court finds it is appropriate to request volunteer counsel, there is no guarantee that counsel will actually volunteer to represent plaintiff.
The factors to be considered in ruling on a motion for pro bono counsel are well settled and include "the merits of plaintiff's case, the plaintiff's ability to pay for private counsel, [plaintiff's] efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel." Cooper v. A. Sargenti Co., 877 F. 2d 170, 172 (2d Cir. 1986). Of these, "[t]he factor which command[s] the most attention [is] the merits."Id. Accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203 (S.D.N.Y. April 26, 1996). As noted fifteen years ago by the Court of Appeals:
Courts do not perform a useful service if they appoint a volunteer lawyer to a case which a private lawyer would not take if it were brought to his or here attention. Nor do courts perform a socially justified function when they request the services of a volunteer lawyer for a meritless case that no lawyer would take were the plaintiff not indigent.Cooper v. A. Sargenti Co., supra, 877 F.2d at 174. See,also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) ("`In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance.'").
For pusposes of resolving the present motion, I am willing to assume that plaintiff lacks the financial resources to retain counsel, has made diligent efforts on his own to obtain pro bono counsel and that due his status as an incarcerated inmate, plaintiff has limited abilities to assemble the evident without the assistance of counsel. Nevertheless, it appears at least preliminarily that plaintiff's case lacks sufficient merit to be added to the list of cases circulated to the Court's Pro Bono Panel.
Reading plaintiff's pro se complaint leniently, Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005); Platsky v. Cent. Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991), plaintiff is seeking compensation for injuries sustained during a fall while in the custody of the Westchester County Department of Corrections. While being moved from one location to another within the Westchester County detention facility, plaintiff engaged in a physical altercation with several correction officers; the parties dispute who instigated the altercation. As a result of this incident, plaintiff was charged with assault in the second degree and obstruction governmental administration. Plaintiff was acquitted of these charges. In addition to damages for the injuries he allegedly sustained during the altercation, plaintiff also asserts a Section 1983 claim for malicious prosecution based on the assault and obstruction charges.
On its face, the complaint suggests that there are serious, and perhaps fatal, problems with plaintiff's claim. First, to the extent that plaintiff is seeking damages for injuries sustained in the course of the physical altercation, defendants have filed a motion to dismiss in which they have submitted evidence that plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e (a). See generally Porter v. Nussle, 534 U.S. 516 (2002) (holding that the PLRA's exhaustion requirement applies even where claim arises out of a single instance of excessive force). Although this motion is still under consideration, the arguments made by defendants in the motion appear, at least preliminarily, to present a serious obstacle to this aspect of the complaint.
To the extent plaintiff is alleging malicious prosecution based on the criminal prosecution in which he prevailed, there also appear to be potentially serious infirmities. Where, as here, a malicious prosecution claim is asserted as a Section 1983 violation, plaintiff must show that there was a post-arraignment deprivation of liberty. Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003). In this case, plaintiff was already detained on unrelated charges at the time of the altercation and subsequent criminal trial. Thus, it appears that even if the charges underlying the present case were maliciously filed, they did not result in any loss of freedom to plaintiff.
Accordingly, plaintiff's motion for counsel is denied without prejudice to renewal. Any renewed motion should be accompanied by an affidavit addressing the merits of plaintiff's claim.
SO ORDERED.