Opinion
06 Civ. 7747 (RJH) (HBP).
October 11, 2007
MEMORANDUM OPINION AND ORDER
By an undocketed notice of motion dated September 13, 2007, 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 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.'").
Apart from her financial condition, the present application addresses none of these factors. Plaintiff provides no information concerning her efforts to secure counsel on her own, nor does she explain why she is unable to litigate the matter without counsel
Moreover, although the record in this case is still extremely sparse, and it impossible to make a determination at this time concerning the ultimate merits of plaintiff's claims, plaintiff's claim seems odd. Plaintiff alleges that she was beaten by staff members at the MCC New York for no reason in October 2003, yet she did not commence this action until September 2006. The unexplained and lengthy delay between the alleged beating and the commencement of this action raises a question concerning the validity the claim. In addition, plaintiff's complaint appears to admit that plaintiff did not exhaust her administrative grievances prior to commencing this action. This failure to exhaust he administrative remedies may also be fatal to plaintiff's claims. 42 U.S.C. § 1997e(a);Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006).
Accordingly, plaintiff's motion for counsel is denied without prejudice to renewal. Any renewed motion should be accompanied by an affidavit addressing all the relevant factors identified above.
SO ORDERED