Opinion
06 Civ. 2362 (PKC) (HBP).
January 29, 2007
MEMORANDUM OPINION AND ORDER
By notice of motion dated May 23, 2006 (Docket Item 7) 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 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.'").
For purposes of resolving the present motion, I am willing to assume that plaintiff lacks the financial resources to retain counsel and that due to his being an incarcerated inmate, plaintiff has limited abilities to gather the evidence without the assistance of counsel. Nevertheless, the present application contains no information concerning either plaintiff's efforts to find counsel on his own or the merits of the case. This is an action brought pursuant to 42 U.S.C. § 1983 in which plaintiff alleges that while he was a pretrial detainee in defendants' custody, he was improperly designated to a "Special Risk Group" based on the incorrect suspicion that he was a member of a gang. As a result of this allegedly incorrect designation, plaintiff claims that he was subjected to "many searches, harassment threats [was] confronted by real gang members" (Compl. § II(D)).
Although it is, of course, impossible to assess fully the merits of the case at this stage, it appears from the face of the complaint that plaintiff will probably face substantial difficulty in succeeding in this case because disciplinary or restrictive confinement, even if unjustified, does not necessarily give rise to a federal claim. As the Supreme Court the Supreme Court "made clear [in Sandin v. Conner, 515 U.S. 472, 484 (1995), . . . a prisoner's restricted confinement within a prison does not give rise to a liberty interest, warranting procedural due process protection, unless the conditions and duration of the prisoner's confinement `impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Sealey v. Giltner, 197 F.3d 578, 583 (2d Cir. 1999) (holding that plaintiff's SHU confinement of 101 days did not trigger due process protections even though plaintiff alleged that he was confined to his cell for twenty-three hours a day, limited to three showers a week, lost various privileges, and had feces thrown at him by other inmates on a few occasions). See also Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) ("[a] prisoner's liberty interest is implicated by prison discipline, such as SHU confinement, only if the discipline imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" (internal quotation marks and citations omitted)); Tellier v. Fields, 280 F.3d 69, 80 (2d Cir. 2000); Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (prisoner alleging Due Process violation based on segregative confinement "must make a threshold showing that the deprivation of which he complains imposed an `atypical and significant hardship on [him] in relation to the ordinary incidents of prison life.'"). Thus, unless plaintiff's special-risk-group classification resulted in an atypical and significant hardship, he may have no federal claim whatsoever.
Accordingly, plaintiff's motion for counsel is denied without prejudice to renewal. Any renewed motion should be accompanied by an affidavit addressing plaintiff's efforts to find counsel on his own and the merits of plaintiff's claim.
SO ORDERED