Opinion
No. 99 Civ. 11984 (GEL) (HBP).
December 11, 2000.
MEMORANDUM OPINION AND ORDER
By motion dated March 9, 2000, plaintiff 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 does not actually appoint" counsel. Rather, in appropriate cases, the Court requests that a member of a panel of volunteer attorneys agree to represent plaintiff. Even in cases where the Court finds it is appropriate to request volunteer counsel, there can be 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). In the words of the Court of Appeals for the Second Circuit:
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. Accord Odom v. Sielaff, supra, at 1.
Plaintiff's current application establishes none of the elements necessary to justify submitting plaintiff's case to the Court's panel of volunteer attorneys. Plaintiff has made no showing whatsoever of his efforts, if any, to find counsel on his own. Moreover, even if I assume that plaintiff lacks the funds to retain counsel and is unable to prepare and try the case without counsel, plaintiff has made no showing that his case is sufficiently meritorious to warrant the appointment of counsel. This is an false arrest case brought under 42 U.S.C. § 1983. And although each case stands or falls on its own merits, the doctrine of qualified immunity often poses a substantial obstacle to recovery in such cases. Plaintiff's claim can also be defeated by a showing probable cause existed for his arrest, which is not difficult standard to meet. Plaintiff here has made no showing here of how he will either overcome either defense or establish the merit of his claim.
As noted in United States v. Wagner, 989 F.2d 69, 71-72 (2d Cir. 1993):
In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court set forth a "totality-of-the-circumstances" test for determining probable cause. . . . The . . . judicial officer must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and "basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." 462 U.S. at 238, 103 S.Ct. at 2332. The quanta of proof necessary to establish probable cause is "only the probability, and not a prima facie showing, of criminal activity . . . ." Id. at 235, 103 S.Ct. at 2330 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969))Accord United States v. Salameh, 152 F.3d 88, 112-13 (2d Cir 1998). See also United States v. Smith, 9 F.3d 1007, 1012 (2d Cir. 1993) ("The term "probable cause," according to its usual acceptation, means less than evidence which would justify condemnation. . . It imports . . . circumstances which warrant suspicion. (inner quotes omitted)).
Thus, plaintiff's failure to establish any of the relevant factors precludes my adding of his case to the list of cases considered by the pro bono panel.
Accordingly, plaintiff's motion for pro bono counsel is denied without prejudice to renewal. Any renewed motion should be accompanied by an affidavit specifically addressing the relevant factors set forth above. The affidavit should provide details to establish that the foregoing factors are satisfied.