Stephens v. Capitol One Financial Corporation et al

Filing 12

ORDER: SO ORDERED that plaintiffs 2 application to proceed in forma pauperis is granted; and it is further, ORDERED that plaintiffs 4 motion for the appointment of counsel is denied without prejudice to renewal when this case is trial ready; and it is further, ORDERED that the Clerk of Court is directed to cause the United States Marshal Service to serve copies of the summons, complaint and this Order upon defts without prepayment of fees, and to serve notice of entry of this Order in accord ance with Rule 77(d)(l) of the Federal Rules of Civil Procedure, including mailing a copy of the Order to the pro se plaintiff at his last known address. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 2/27/2012. (Florio, Lisa)

t' I 1.. 1: U
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N Y

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

~ti:l27Z012

LONG ISLAND OFFICE

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JOHN K. STEPHENS,
Plaintiff,
ORDER
12-CV-00193 (SJF)(ARL)

-against-

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CAPITOL ONE FINANCIAL CORPORATION,
RICHARD D. FAIRBANK, CEO, et. a!,
Defendants.

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FEUERSTEIN, District Judge:
On January 13, 2012, prose plaintiff John K. Stephens ("plaintiff') filed a complaint in
this Court against Capitol One Financial Corporation and Richard D. Fairbank, C.E.O.
(collectively, "defendants"), accompanied by applications to proceed in forma pauperis and for
the appointment of pro bono counsel. Plaintiff's financial status, as set forth in his declaration in
support of his application to proceed in forma pauperis, qualifies him to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(l). Accordingly, plaintiff's
application to proceed in forma pauperis is granted. However, for the reasons set forth below,
plaintiffs application for the appointment of pro bono counsel is denied without prejudice.
28 U.S.C. § 1915(e)(l) provides that a "court may request an attorney to represent any
person unable to afford counsel." Courts possess substantial discretion to determine whether
appointment of counsel for civil litigants is appropriate, Ferrelli v. River Manor Health Care
Center, 323 F.3d 196,203 (2d Cir. 2003), "subject to the requirement that [they] be 'guided by
sound legal principle."' Cooper v. A. Sargenti Co .. Inc., 877 F.2d 170, 171-72 (2d Cir. 1989)
(quoting Jenkins v. Chemical Bank, 721 F.2d 876,879 (2d Cir. 1983)).
When deciding whether to appoint counsel to an indigent civil litigant under § 1915(e)( I),

the threshold inquiry is whether there is "some likelihood of merit" to the litigant's position.
Johnston v. Maha, 606 F.3d 39,41 (2d Cir. 2010); see also Carmona v. United States Bureau of
Prisons, 243 F.3d 629, 632 (2d Cir. 2001) ("counsel should not be appointed in a case where the
merits of the indigent's claim are thin and his chance of prevailing are therefore poor."); see also
Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986) (stating that "the district judge should
first determine whether that indigent's position seems likely to be of substance").
lfthe threshold showing has been met, the court should next consider the following
prudential factors:
[T]he 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 in that case why
appointment of counsel would be more likely to lead to a just determination.
Hodge, 802 F.2d at 61-62; see also Johnston, 606 F. 3d at 42 (applying the Hodge factors);
Carmona, 243 F .3d at 632 (holding that"[ o]nly after an initial finding that a claim is likely one of
substance, will we consider secondary factors such as the factual and legal complexity of the case,
the ability of the litigant to navigate the legal minefield unassisted, and any other reason why in the
particular case appointment of counsel would more probably lead to a just resolution of the
dispute"). However, those factors are not exclusive and "[ e ]ach case must be decided on its own
facts." Hodge, 802 F .2d at 61.
The appointment of pro bono counsel is not warranted at this stage of the litigation
because, inter alia, the legal issues presented in this case are not particularly complex; plaintiff
appears capable of preparing and presenting his case and investigating the crucial facts; and there is
no special reason to appoint counsel at this time. Accordingly, plaintiff's application for the
appointment of counsel is denied without prejudice to renewal when this case is trial ready. In the
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interim, plaintiff must either retain counsel or proceed prose.
For the foregoing reasons, it is hereby:
ORDERED that plaintiffs application to proceed in forma pauperis is granted; and it is
further,
ORDERED that plaintiffs motion for the appointment of counsel is denied without
prejudice to renewal when this case is trial ready; and it is further,
ORDERED that the Clerk of Court is directed to cause the United States Marshal Service
to serve copies of the summons, complaint and this Order upon defendants without prepayment of
fees, and to serve notice of entry ofthis Order in accordance with Rule 77(d)(l) ofthe Federal
Rules of Civil Procedure, including mailing a copy of the Order to the pro se plaintiff at his last
known address, see Fed. R. Civ. P. 5(b)(2)(c).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed.2d
21 (1962).

SO ORDERED.

s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: February 27, 2012
Central Islip, New York

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