Opinion
7:20-CV-04532 (NSR)
10-19-2023
MIKE WHITE, Plaintiff, v. ERIC GUTWEIN, C. STORY, D. VENETTOZZI, and T. GRIFFIN Defendants.
ORDER
NELSON S. ROMAN, United States District Judge:
Plaintiff, currently incarcerated at Green Haven Correctional Facility, commenced this pro se action under 42 U.S.C. § 1983. He asserts that Defendants denied him procedural due process during a disciplinary proceeding and failed to protect him from an assault. Pending before the Court is Plaintiff's third application for the appointment of pro bono counsel. (ECF No. 66.)
Unlike in criminal proceedings, the Court does not have the power to obligate attorneys to represent indigent pro se litigants in civil cases. See Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 308-09 (1989). Instead, pursuant to 28 U.S.C. § 1915(e)(1), the Court may, at its discretion, order that the Pro Se Office request an attorney to represent an indigent litigant by placing the matter on a list circulated to attorneys who are members of the Court's pro bono panel. See Palacio v. City of New York, 489 F.Supp.2d 335, 344 (S.D.N.Y. 2007).
The Second Circuit set forth the standards governing the appointment of counsel in pro se cases in Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997), Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989), and Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). These cases direct the district courts to “first determine whether the indigent's position seems likely to be of substance,” Hodge, 802 F.2d at 61, and then, if this threshold is met, to consider “secondary criteria,” including the pro se litigant's “ability to obtain representation independently, and his ability to handle the case without assistance in the light of the required factual investigation, the complexity of the legal issues, and the need for expertly conducted cross-examination to test veracity.” Cooper, 877 F.2d at 172; accord Hendricks, 114 F.3d at 392 (quoting Hodge, 802 F.2d at 61-62). “Even where the claim is not frivolous, counsel is often unwarranted where the indigent's chances of success are extremely slim,” and the Court should determine whether the pro se litigant's “position seems likely to be of substance,” or shows “some chance of success.” Hodge, 802 F.2d at 60-61.
The proceedings are still in their early stages, and Plaintiff is yet to file his Second Amended Complaint. Thus, the Court is unable to conclude that Plaintiff cannot handle the case without assistance, although this conclusion may change as the action progresses. Furthermore, the Court still cannot ascertain whether Plaintiff's position shows a strong chance of success, especially in light of this Court's Opinion and Order dismissing Plaintiff's Amended Complaint (ECF No. 54; see ECF No. 65). Nor are the legal issues in this case particularly complex. Although the Court is sympathetic to Plaintiff's health issues, Plaintiff has not “demonstrate[d] that his [condition] prevents him from effectively prosecuting his case.” Smolen v. Brown, No. 18-CV-7621 (KMK), 2022 WL 4134366, at *2 (S.D.N.Y. Sept. 12, 2022) (collecting cases) (citation omitted). In fact, this Court recently granted Plaintiff's motion for reconsideration (ECF No. 65), as well as multiple extension requests (see ECF Nos. 56, 60).
Therefore, because the Court does not find any circumstances which warrant the appointment of pro bono counsel at this time, Plaintiff's request is DENIED without prejudice to renew at a later stage in the proceedings.
Plaintiff is again advised that he may consult the legal clinic opened in this District to assist people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group; it is not part of, or run by, the Court (and, among other things, therefore cannot accept filings on behalf of the Court, which must still be made by any pro se party through the Pro Se Intake Unit).
To receive limited-scope assistance from the Clinic, the Plaintiff may mail a signed retainer and intake papers to the NYLAG Pro Se Clinic at 40 Foley Square, Room LL22, New York, NY 10007. Once the paperwork is received, the Clinic will coordinate contact with the litigant. Once received, it may take up to two weeks for the Clinic to contact the litigant. Please see the attached pages for the Clinic's retainer and intake paperwork.
Although the Court DENIES Plaintiff's motion for the appointment of pro bono counsel, the Court affords Plaintiff additional time to file the Second Amended Complaint. Plaintiff is directed to file the Second Amended Complaint no later than December 1, 2023. Failure to file the Second Amended Complaint within the time allowed, and without good cause to excuse such failure, will result in dismissal with prejudice of all claims that this Court has previously dismissed without prejudice. This is the FINAL extension of time for Plaintiff to file the Second Amended Complaint. The Court will entertain no further extension requests.
Plaintiff is further advised that an amended complaint, in this case a second amended complaint, completely supplants the previous complaint. In other words, he must include all allegations he wishes to be considered in the Second Amended Complaint, and if he fails to include any allegations, he cannot rely upon the fact that he previously asserted allegations in the Complaint or Amended Complaint. The Court will not be consolidating multiple complaints. A Second Amended prisoner civil rights complaint form is attached to this Order.
If Plaintiff files a Second Amended Complaint, remaining Defendants are directed to file an answer or otherwise seek leave to move in response to the Second Amended Complaint on or before December 22, 2023.
The Clerk of the Court is respectfully directed to mail a copy of this Order and ECF No. 65 to pro se Plaintiff at his address listed on ECF.
SO ORDERED.
(Exhibit Omitted).