Opinion
02 Civ. 2298 (SHS) (HBP)
March 14, 2002
MEMORANDUN OPINION AND ORDER
By motion dated only "2001" (Docket Item 3), plaintiff 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.'")
Even is I assume that plaintiff lack's the financial resources to retain counsel and that he has already made a diligent search for pro bono counsel, his papers do not establish the remaining factors relevant to his motion. Plaintiff's application provides absolutely no information concerning plaintiff's ability to litigate this matter on his own, nor does it provide any information concerning the merits of his claim. In addition, although I am not prejudging the merits of this case, there is no evidence currently before me that establishes that plaintiff's case has merit. I this regard, I note that the EEOC concluded that plaintiff had submitted no evidence to it that suggested the reason given by defendant for plaintiff's termination was a pretext for illegal discrimination. In addition, plaintiff has not even caused the summons, complaint or amended complaint to be served on defendant and is currently facing the possibility of dismissal for failure to comply with Fed.R.Civ.P. 4(m). Thus, at least at this point, whether plaintiff's claims will succeed is questionable at best.
Accordingly, plaintiff's motion for counsel is denied without prejudice to renewal. Any renewed motion should be accompanied by an affidavit specifically addressing the relevant factors set forth above. The affidavit should provide details to establish that the foregoing factors are satisfied.