Opinion
05 Civ. 5802 (JSR) (HBP).
November 14, 2007
OPINION AND ORDER
By a notice of motion dated April 16, 2007 (Docket Item 38), plaintiffs move 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; there is no right to appointed counsel in civil cases. 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.'").
Plaintiff is an inmate in the custody of the New York State Department of Correctional Services and alleges, in principal, part that he was beaten by the defendants without provocation, in violation of his Eighth Amendment rights. All pretrial proceedings in the case are complete except for preparation of the pretrial order. Counsel for the remaining defendants has advised me that he does not intend to make a dispositive motion with respect to the claims asserted against the three remaining defendants. Although I am sure defendants' counsel honestly believes that the claims will ultimately prove to be meritless, it does appear that the allegations have sufficient merit to warrant a trial.
There were originally eleven defendants in this case. Plaintiff has stipulated to the dismissal of all claims against eight of these defendants.
As to the other factors relevant to the appointment of counsel, plaintiff's motion papers establish his indigency and also establish that he has unsuccessfully sought representation from at least two attorneys. In addition, plaintiff does not appear to have any legal training, and his case will no doubt be better presented by an attorney.
On balance, I conclude that it is appropriate to add plaintiff's case to the list of cases considered by the Court's Pro Bono Panel.
Accordingly, plaintiff's motion (Docket Item 38) is granted. The Court's Pro Se Clerk is directed to add plaintiff's case to the list of cases submitted to the Pro Bono Panel.
SO ORDERED