Opinion
Nos. 04-4813-pr (L) 04-5198-pr (Con).
January 3, 2008.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the case is REMANDED to the district court for further proceedings consistent with this opinion.
FOR APPELLANT: PHILIP IRWIN (C. William Phillips, Pamela Sawhney, on the brief), Covington Burling LLP, New York, NY.
This Court appointed Covington Burling LLP ("Covington") as pro bono appellate counsel to represent Rivas, who is incarcerated for crimes unrelated to this case. We are most appreciative of Covington's commitment and fine effort on this case.
FOR APPELLEE: ARLENE ZWILLING, for Christing Malafi, Suffolk County Attorney, Hauppauge, NY.
PRESENT: HON. GUIDO CALABRESI HON. JOSÉ A. CABRANES HON. SONIA SOTOMAYOR, Circuit Judges.
Plaintiff-appellant Rudi Rivas ("Rivas") appeals from a judgment of the United States District Court for the Eastern District of New York (Spatt, J.), denying his motion for a default judgment and dismissing his 42 U.S.C. § 1983 malicious prosecution and false arrest claims under Fed.R.Civ.P. 50(a). On appeal, Rivas argues that the district court: (1) erred as a matter of law in dismissing Rivas' § 1983 claims; (2) abused its discretion by failing to appoint counsel; and (3) deprived him of his right to due process through the combination of excessive delay, the failure to appoint counsel, and errors of law. We assume the parties' familiarity with the facts and history of this case.
In dismissing Rivas' § 1983 false arrest claim, the district court erred as matter of law in holding that Rivas's indictment established a presumption of probable cause. While such a presumption arises in malicious prosecution claims, the presumption "`is totally misplaced when applied in false [arrest] actions.'" Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003) (quoting Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93 (1975)). The district court also erroneously concluded that the state court's dismissal of Rivas' criminal charges did not constitute a "favorable termination" for purposes of his § 1983 malicious prosecution claim. The record makes clear that the criminal charges were dismissed for failure to prosecute, and with a speedy trial violation imminent. Under these circumstances, the district court erred in holding that Rivas failed to demonstrate a favorable termination. See Murphy v. Lynn, 118 F.3d 938, 949-50 (2d Cir. 1997) (approving New York cases holding that "failure to prosecute or failure to comply with speedy-trial requirements should be considered . . . a termination favorable to the accused"); see also Smith-Hunter v. Harvey, 95 N.Y.2d 191, 198, 712 N.Y.S.2d 438, 443 (2000).
We remand because we believe the appointment of pro bono counsel to represent the pro se appellant-plaintiff before the district court is warranted. Although civil litigants have no constitutional right to counsel, district courts are statutorily authorized under 28 U.S.C. § 1915(e)(1) to appoint counsel for indigents in civil cases. See Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). In Hodge, we articulated a legal framework for making appointment determinations. Id. at 61. First, the district court must "determine whether the indigent's position seems likely to be of substance." Id. If this threshold requirement is met:
At the time Hodge was decided, the provision for appointment of pro bono counsel was contained in 28 U.S.C. § 1915(d). In 1996, the provision was moved to § 1915(e)(1) without change. See Hendricks v. Coughlin, 114 F.3d 390, 391 n. 1 (2d Cir. 1997).
the court should then consider 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 . . . why appointment of counsel would be more likely to lead to a just determination.
Id. at 61-62. A district court's failure to consider the relevant factors constitutes an abuse of discretion. Hodge, 802 F.2d at 62.
Here, the district court determined after the close of discovery that appointment of counsel was warranted because the Hodge factors were met. However, the district court later abandoned its effort to appoint counsel after three attorneys declined the court's requests. The first two attorneys declined for reasons unrelated to the merits: one because of a conflict of interests; the other due to insufficient resources. The third attorney, Richard A. Miller, declined the court's request based on his opinion that the case lacked merit, but did not explain why he thought so.
While we have explained that a district court "may rely in part on an evaluation by a member of the bar that the claim has no merit" in making Hodge's threshold determination, Pena v. Choo, 826 F.2d 168, 169 (2d Cir. 1987), the district court did not rely on Mr. Miller's assessment of the case in abandoning its effort to appoint counsel, and did not otherwise reconsider its prior Hodge determination that Rivas' claims were likely of substance. Reliance on Mr. Miller's assessment of the case may have been problematic in any event. Mr. Miller did not explain why he thought the case lacked merit. Indeed, it does not appear from Mr. Miller's letter to the court that he consulted with Rivas before declining the court's request to represent Rivas. Moreover, to the extent the court may have reevaluated the merits of the case based on Mr. Miller's assessment, the court's determination may have been influenced by its own legal misperceptions discussed above.
Given the complexity of the factual and legal issues presented by this case, we remand to the district court to reappoint pro bono counsel. Appointed counsel should be given the opportunity to file in the district court any and all motions that counsel deems appropriate, including motions for default judgment, to reopen discovery, and for a new trial.
Upon our questioning at oral argument, Rivas' counsel indicated that Covington would consider representing Rivas on remand if the district court appointed the firm.
For the foregoing reasons, we REMAND to the district court for further proceedings consistent with this opinion.