Opinion
06 Civ. 11357 (SHS) (HBP).
November 13, 2007
MEMORANDUM OPINION AND ORDER
By a notice of motion dated May 26, 2007 (Docket Item 89), plaintiffs move 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; there is no right to appointed counsel in civil cases. 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 plaintiffs. If no panel member agrees to represent the plaintiffs, 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 plaintiffs.
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 their financial condition, the present application addresses none of these factors sufficiently. Plaintiffs provides no specific information concerning their efforts to secure counsel on her own, nor do they explain why they are unable to litigate the matter without counsel.
In addition, plaintiffs' behavior in the case to date has been extremely odd. Despite repeated telephone calls to my chambers earlier this year claiming an urgent need for injunctive relief, plaintiffs refused to appear for a status conference in April of this year, claiming, among other things, that the conference and other unspecified proceedings in the case were somehow illegal, that Judge Stein and I should be recused because Judge Stein had denied plaintiff's application for a preliminary injunction directing that defendants provide plaintiffs with housing, that some negative inference should be drawn from the fact that neither the complaint nor the amended complaint were microfilmed, and that the conference was part of some nefarious plot to have plaintiffs arrested. Plaintiffs had been previously escorted from the office of the Pro Se Clerk after creating a disturbance, but I had assured them in writing prior to the conference scheduled in April that they would not be arrested or bothered in any way so long as they behaved appropriately. Despite this assurance, plaintiffs failed to come to court to address their allegedly urgent claims for relief.
The only documents microfilmed by the Clerk are Orders signed by a judicial officer. Submissions by parties that are not converted into orders by a judge's endorsement are not microfilmed.
Plaintiffs' bizarre beliefs concerning their case and the role of the court is, perhaps, best illustrated by the following statement in a letter they sent to me, dated April 2, 2007:
Please know that in spite of your powerful coercion for sexual trafficking, not giving the report number, work authorization, closing public assistance case, having [us] assaulted and falsely arrested by New York Police, evicting [us] from the Church's sleeping accommodations to the street, throwing our belongings in garbage, your attempts were unsuccessful and will be unsuccessful in future.
As of April 2, 2007, I had not issued any Orders in this case, had never issued Orders in any matter directed at plaintiffs and plaintiffs had never even appeared before me. The allegations in plaintiffs' letter are sheer fantasy.
In October of this year, after plaintiffs had failed to respond to seven dismissal motions, I issued an Order directing plaintiffs to advise me whether they were still interested in pursuing their action. Plaintiffs did not directly answer my question and instead expressed a belief that I was insane. And in their current application for pro bono counsel, plaintiffs accuse unidentified judges of performing unspecified "experiments" on them.
Finally, the claims in plaintiffs' amended complaint include claims for infliction of mental distress against persons who provided plaintiffs with temporary shelter and even gave plaintiffs $1,000 dollars when they were evicted from the shelter.
This odd array of behavior gives rise to serious questions concerning the validity of plaintiffs' allegations. I appreciate that plaintiffs are proceeding pro se and that English is not their native language. Nevertheless, it is bizarre that they have rebuffed my attempts to have them come to court to discuss their case and have responded to the court with a string of invectives directed at Judge Stein, other unidentified judges and myself. As the authorities cited above demonstrate, "courts [do not] 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. Given plaintiffs' behavior to date, I cannot conclude that referring their case to the Court's Pro Bono Panel would be a prudent or reasonable use of scarce pro bono resources.
Accordingly, plaintiffs' 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