Opinion
05 Civ. 5792 (JSR) (HBP).
July 6, 2006
MEMORANDUM OPINION AND ORDER
By motion dated October 25, 2005 (Docket Item 6) plaintiff, who is incarcerated, 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.'").
For purposes of resolving the present motion, I am willing to assume that plaintiff lacks the financial resources to retain counsel, has made diligent efforts on his own to obtain pro bono counsel and that due his status as an incarcerated inmate, plaintiff has limited abilities to assemble the evidence without the assistance of counsel. Nevertheless, it appears at least preliminarily that plaintiff's case lacks sufficient merit to be added to the list of cases circulated to the Court's Pro Bono Panel.
Reading plaintiff's pro se complaint leniently, Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005); Platsky v. Cent. Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991), it appears that plaintiff is seeking compensation for being sentenced to sixty (60) days in special housing. Plaintiff alleges that the sentence was imposed as a result of an allegedly illegal urine test that was positive for morphine. Plaintiff does not allege any physical injury; rather he alleges only that he was subjected to cruel and unusual punishment that caused him mental stress.
On its face, the complaint suggests that there are serious, and perhaps fatal, problems with plaintiff's claim. First, the Supreme Court's decision in Sandin v. Conner, 515 U.S. 472 (1995), substantially limits when a prisoner is entitled to Due Process protections in connection with prison disciplinary proceedings. As explained by the Court of Appeals for the Second Circuit:
The Supreme Court's decision in Sandin made clear that a prisoner's restricted confinement within a prison does not give rise to a liberty interest, warranting procedural due process protection, unless the conditions and duration of the prisoner's confinement "impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sealey v. Giltner, 197 F.3d 578, 583 (2d Cir. 1999) (holding that plaintiff's SHU confinement of 101 days did not trigger due process protections even though plaintiff alleged that he was confined to his cell for twenty-three hours a day, limited to three showers a week, lost various privileges, and had feces thrown at him by other inmates on a few occasions), quoting Sandin v. Conner, supra, 515 U.S. at 484. See also Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) ("[a] prisoner's liberty interest is implicated by prison discipline, such as SHU confinement, only if the discipline imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" (internal quotation marks and citations omitted)); Tellier v. Fields, 280 F.3d 69, 80 (2d Cir. 2000); Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (prisoner alleging Due Process violation based on segregative confinement "must make a threshold showing that the deprivation of which he complains imposed an `atypical and significant hardship on [him] in relation to the ordinary incidents of prison life.'"). Although it is theoretically possible that plaintiff could allege conditions of confinement so severe that Due Process protections are implicated not withstanding the relatively short 60-day sentence, see Palmer v. Richards, supra, 364 F.3d at 64-66; Colon v. Howard, 215 F.3d 227, 232 n. 5 (2d Cir. 2000), it is doubtful that this theoretical possibility will become reality.
Second, the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(e) provides, in pertinent part that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." See also Liner v. Goord, 196 F.3d 132, 134 (2d Cir. 1999) (stating that the PLRA requires a prior showing of physical injury when claiming emotional distress); Wright v. New York State Dep't. of Corr. Servs., 9:04-CV-308, 2006 WL 752787 at *8 (N.D.N.Y. Mar. 22, 2006.) ("[T]he Second Circuit has specifically held, interpreting the Prison Litigation Reform Act, that the statute requires a prior showing of physical injury when making claims of emotional distress under the Eighth Amendment. . . . Thus, plaintiff cannot claim emotional damages alone. . . .");Bussey v. Phillips, 419 F. Supp.2d 569, 587-88 (S.D.N.Y. 2006) ("[U]under the P.L.R.A., a prisoner may not recover damages for mental or emotional injury for a constitutional violation without a showing of actual physical injury."). The form utilized by plaintiff asked him to specify his injuries. In response, plaintiff entered "mental stress, cruel and unusual punishment." Given the absence of any allegation of physical injury, there is also a serious question as to whether the claim can survive a dismissal motion based on the PLRA.
The foregoing discussion is clearly not an exhaustive analysis of the complaint. Nevertheless, it does establish the existence of two potentially fatal defects in the complaint. This apparent lack of merit precludes the case from being added to the list of cases circulated to the Pro Bono Panel at this time.
Accordingly, plaintiff's motion for counsel is denied without prejudice to renewal. Any renewed motion should be accompanied by an affidavit addressing the merits of plaintiff's claim.