Opinion
No. 04 Civ. 8690 (KMW) (HBP).
February 3, 2006
MEMORANDUM OPINION AND ORDER
By motion dated August 21, 2005 (Docket Item 8) 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 voluntcer 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 her 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.'").
Plaintiff's application for pro bono counsel provides no information whatsoever concerning the merits of his case. I have reviewed plaintiff's amended complaint, and it not helpful either. Plaintiff appears to be attempting to assert a claim arising out of the medical care he received while incarcerated at Rikers Island. Specifically, plaintiff appears to be claiming that he was prescribed certain medications that had unpleasant side effects. No facts are alleged linking the side effects to the medications; the causal relationship appears to be assumed. Most of the amended complaint consists of illegible copies of plaintiff's medical records with no explanation of how they support plaintiff's claim or how they bear on any issue in the case. Based on the pleading currently on file, it is not even clear that plaintiff has stated a claim.
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.