Opinion
19-CV-5450 (VSB) (KHP)
08-10-2021
JASON MASON, Plaintiff, v. CITY OF NEW YORK, ET AL., Defendant.
ORDER DENYING REQUEST FOR PRO BONO COUNSEL
KATHARINE H. PARKER, United States Magistrate Judge.
Plaintiff has filed an Application for the Court to Request Counsel. For the following reasons, Plaintiff's application is denied
LEGAL STANDARD
The in forma pauperis statute provides that the courts “may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Unlike in criminal cases, in civil cases, there is no requirement that courts supply indigent litigants with counsel. Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986). Instead, the courts have “broad discretion” when deciding whether to grant an indigent litigant's request for pro bono representation. Id. Even if a court does believe that a litigant should have a free lawyer, under the in forma pauperis statute, a court has no authority to “appoint” counsel, but instead, may only “request” that an attorney volunteer to represent a litigant. Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 301-310 (1989). Moreover, courts do not have funds to pay counsel in civil matters. Courts must therefore grant applications for pro bono counsel sparingly, and with reference to public benefit, in order to preserve the “precious commodity” of volunteer-lawyer time for those litigants whose causes are truly deserving. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir. 1989).
In Hodge, the Second Circuit set forth the factors a court should consider in deciding whether to grant an indigent litigant's request for pro bono counsel. 802 F.2d at 61-62. Of course, the litigant must first demonstrate that he or she is indigent, for example, by successfully applying for leave to proceed in forma pauperis. The court must then consider whether the litigant's claim “seems likely to be of substance” - “a requirement that must be taken seriously.” Id. at 60-61. If these threshold requirements are met, the court must next consider such factors as:
the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues[, ] and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.Id.; see also Cooper, 877 F.2d at 172 (listing factors courts should consider, including litigant's efforts to obtain counsel). In considering these factors, district courts should neither apply bright-line rules nor automatically deny the request for counsel until the application has survived a dispositive motion. See Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Rather, each application must be decided on its own facts. See Hodge, 802 F.2d at 61.
DISCUSSION
Plaintiff filed a Request to Proceed in Forma Pauperis (IFP), which the Court granted. (See Order dated September 23, 2019, ECF No. 9.) When Plaintiff filed his Application for the Court to Request Counsel, Plaintiff did not affirm that his financial status had not changed. (See Application for the Court to Request Counsel, ECF No. 86.) Plaintiff therefore does not qualify as indigent. Additionally, the other factors weigh against granting Plaintiff's application at this time. This case is still in its early stages. Plaintiff has been able to obtain information, including video, to support his claim. Plaintiff also has been able to articulate to this Court the basis for his claim and grounds for challenging the credibility of Defendant witnesses. In short, although Plaintiff is not a lawyer, he has been able to prosecute his case thus far and representation would not “lead to a quicker and more just result by sharpening the issues and shaping examination.” Hodge, 802 F.2d at 61.
CONCLUSION
For the foregoing reasons, Plaintiff's Application for the Court to Request Counsel is denied. Denial of Plaintiff's request is without prejudice to Plaintiff's renewed application later in the case.
SO ORDERED.