Opinion
No. 02 Civ. 9977 (LTS) (HBP)
April 10, 2002
MEMORANDUM OPINION AND ORDER
By motion dated January 23, 2003 (Docket Item 6), 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. 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.'").
Even is I assume that plaintiff lacks the financial resources to retain counsel, his papers do not establish the remaining factors relevant to his motion. There is nothing in plaintiff's application that suggests that he has made any efforts on his own to retain counsel. There is nothing in plaintiff's application explaining why he is unable to litigate this matter on his own. And, most important, there is nothing in plaintiff's application addressing the merits of plaintiff's claim. Plaintiff's complaint appears to allege claims for deliberate indifference based on defendants' alleged failure to provide medical care for various physical conditions and retaliation based on plaintiff's allegedly being given undesirable work and cell assignments as a results of administrative grievance proceedings he commenced. With respect to the former claim, defendant will have to establish not only the personal involvement of each of the defendants, Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987); Ellis v. Blum, 643 F.2d 68, 85 (2d Cir. 1981); Black v. United States, 534 F.2d 524, 527 (2d Cir. 1976); Hylton v. Federal Bureau of Prisons, CV 00-5747 (RR), 2002 WL 720605 at *2 (E.D.N.Y. Mar. 11, 2002), but will also have to prove that (1) that the medical conditions on which plaintiff is relying were "condition[s] of urgency" that might have result in "degeneration" or "extreme pain," Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996); Thomas v. Arevalo, 95 Civ. 4704 (SS), 1998 WL 427623 at *5 (S.D.N.Y. July 28, 1998) and (2) that the defendants "kn[e]w of and disregard[ed] an excessive risk to inmate health or safety; the [defendants] must [have been] both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). See also Wilson v. Seiter, 501 U.S. 294, 298-302 (1991); Morales v. Mackalm, 278 F.3d 126, 132-33 (2d Cir. 2002). "`"[M]ere medical malpractice" is not tantamount to deliberate indifference,' but it may rise to the level of deliberate indifference when it `involves culpable recklessness, i.e., an act or a failure to act . . . that evinces `a conscious disregard of a substantial risk of serious harm."'" Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000), quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Although this case is still in its beginning stages and it would be improper to make a final judgment concerning the merits of the claims, at this point, plaintiff appears to have nothing other than his own testimony to prove his claim and the ultimate outcome is, therefore, far from clear.
Accordingly, plaintiff's motion for 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.