Opinion
20-CV-8352 (JPC) (BCM)
10-26-2023
CALVIN REED, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants.
ORDER
BARBARA MOSES UNITED STATES MAGISTRATE JUDGE
The Court is in receipt of (i) plaintiff Calvin Reed's motion, dated September 11 and filed September 18, 2023, seeking leave to file a third amended complaint that would add 12 new defendants (Mtn. to Amend) (Dkt. 94); and (ii) plaintiff's application for the Court to request pro bono counsel on his behalf (Pro Bono Counsel App.) (Dkt. 101) filed on October 18, 2023. This order resolves Reed's application for pro bono counsel and sets a deadline to complete the briefing on the motion for leave to amend.
Plaintiff's Request for Pro Bono Counsel is Denied
The courts "may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). In civil cases - unlike criminal 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 seek pro bono representation for a civil litigant. Id. Even if a court does believe that a litigant should have a lawyer, it has no authority to "appoint" counsel, but instead, may only "request" that an attorney volunteer to represent that litigant. Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 301-10 (1989). Moreover, courts do not have funds to pay counsel in civil matters. Courts must therefore request the services of pro bono counsel sparingly, and with reference to public benefit, in order to preserve the "precious commodity" of volunteer-lawyer time. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir. 1989).
In determining whether to grant an application for counsel, the Court must consider "the merits of plaintiff's case, the plaintiff's ability to pay for private counsel, his 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., Inc., 877 F.2d 170, 172 (2d Cir. 1989) (per curiam). As a threshold matter, plaintiff must demonstrate that his claim has substance or a likelihood of success. See Hodge, 802 F.2d at 60-61. Thus, as noted on the application form that plaintiff filled out, "[R]equests for pro bono counsel are rarely granted at the early stages of a case and usually not before the Court has issued a decision on the merits of the case." Pro Bono Counsel App. at 1. Although this case has been on the docket since 2020, it is still at an early stage, procedurally. Indeed, although the defendants named in the Second Amended Complaint have answered it, in light of the pending motion for leave to amend, the pleadings are once again unsettled and it is unclear which claims may survive and against which defendants. Thus, the Court is not in a position to conclude that plaintiff's claims have substance.
In his application, Reed states that he needs an attorney because he is no longer in prison and because he is now a plaintiff in three civil cases proceeding simultaneously in district court. Pro Bono Counsel App. at 1. However, an incarcerated plaintiff's release does not increase the need for pro bono counsel. If anything, plaintiff's freedom will increase his access to the resources necessary to do his own research, take advantage of free legal services, or locate private counsel willing to take his case. See, e.g., Miller v. Univ. of Med. & Dentistry of New Jersey, 2013 WL 1197806, at *2 (D.N.J. Mar. 20, 2013) (noting that a released plaintiff "should have access to public libraries to conduct legal research, greater mobility to contact attorneys for possible legal representation, and opportunities to seek employment and earned income to alleviate his financial difficulty in seeking representation."). Similarly, the fact that a plaintiff is pursuing multiple civil lawsuits does not, standing alone, entitle him to pro bono counsel in any one of those cases. Plaintiff's request that the court seek pro bono counsel to represent him is therefore DENIED, without prejudice to renewal if and when plaintiff has made a stronger showing on the merits.
Other Options for Legal Assistance
Although the Court will not seek pro bono counsel for Reed at this time, he may benefit from the services of a legal clinic. The New York Legal Assistance Group (NYLAG) operates a free legal clinic in the Southern District of New York, staffed by attorneys and paralegals, to assist those who are representing themselves in civil lawsuits in this Court. The clinic is not part of, or run by, the Court (and, among other things, cannot accept filings on behalf of the Court, which must still be made by a pro se party through the Pro Se Intake Unit).
A flyer explaining how to contact the NYLAG is attached to this order.
The Motion for Leave to Amend
As noted above, Reed has filed a motion for leave to file a third amended complaint. He proposes to add 12 new defendants, including 11 police officers and an assistant district attorney, explaining that he only recently learned that these individuals "played a significant role in my arrest." Mtn. to Amend at 1. However, plaintiff's proposed new pleading, see id. at ECF pp. 3-16, fails to list any of the proposed new defendants, describe any allegedly unlawful conduct by them, or explain how, if at all, his proposed claims against these individuals relate to the claims alleged in the Second Amended Complaint. In a letter-brief filed October 23, 2023 (Dkt. 102), defendants oppose plaintiff's motion, arguing that all of his claims against the proposed new defendants are barred by the applicable 3-year statute of limitations and do not "relate back" to the date on which plaintiff originally filed this action.
Plaintiff may file a reply brief in further support of his motion for leave to amend no later than November 27, 2023. In his reply brief (which may be in letter form), plaintiff should respond to the specific points raised by defendants in opposition to the motion. If plaintiff fails to file a reply brief by the deadline set forth herein, the Court may decide the motion based on the present record.
Change of Address
Finally, the Court observes that Reed's address appears to have changed. See Pro Bono Counsel App. at 2. The Court reminds plaintiff that it is his responsibility to update the Court whenever his address or other contact information changes.
Consent to Receive Documents Electronically
Now that Reed has been released from prison, he may wish to receive documents in this case electronically (by e-mail) instead of by regular mail. If so, Reed may fill out and submit the attached consent to electronic service.
Conclusion
The motion for pro bono counsel (Dkt. 101) is DENIED.
The Clerk of Court is respectfully directed to update plaintiff's address on the docket as follows:
2111 Southern Boulevard
Apt. 17A
Bronx NY 10460 The Clerk of Court is further directed to mail this Order, as well as the orders at Dkts. 92, 96, 98, and 100 (which were previously mailed to various correctional facilities) to plaintiff at his new address.
SO ORDERED.