Oliver v. New York State Police

Filing 355

ORDER that Plaintiff's request for appointment of counsel (Dkt. No. 344 ) to represent her at trial is DENIED; if Plaintiff has not retained counsel to represent her at trial, the Court will appoint standby trial counsel to be present at trial to assist Plaintiff in the orderly presentation of her case at trial. The Court will appoint standby counsel after the completion of pre-trial submissions and after the final pre-trial conference and shortly before trial. This appointment will be limited as standby counsel will not be Plaintiff's representative in this case: Plaintiff will continue to be responsible for the presentation of her case. The role of standby counsel will be to provide guidance to assist Plaintiff in the ord erly presentation of her case at trial. This ruling does not preclude Plaintiff from hiring her own counsel to represent her in this matter; the Court encourages Plaintiff to continue to seek counsel to represent her at trial. Signed by Judge Brenda K. Sannes on 9/9/2020. (Copy served on pltf via regular mail)(rjb, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JEAN OLIVER,
Plaintiff,
v.
NEW YORK STATE POLICE; WAYNE OLSON, in his
individual and official capacity; MARTIN MCKEE, in his
individual and official capacity; PAUL KELLY, in his
individual and official capacity,
Defendants. 

Appearances:
Plaintiff pro se:
Jean Oliver
Fort Belvoir, VA 22060
For Defendants New York State Police,
Olson, and Kelly:
Daniel J. Moore
Joshua D. Steele
Harris Beach PLLC
99 Garnsey Road
Pittsford, NY 14534
For Defendant McKee:
Lisa F. Joslin
Daniel A. Jacobs
Gleason, Dunn, Walsh & O’Shea
40 Beaver Street
Albany, NY 12207
Hon. Brenda K. Sannes, United States District Judge:

1:15-cv-00444 (BKS/DJS)

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MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Jean Oliver brings this employment discrimination action against Defendant

New York State Police (“NYSP”) and three NYSP employees. (Dkt. No. 37). Following
summary judgment, the remaining claims include, inter alia, a claim under 42 U.S.C. § 1983
against Defendant Paul Kelly for violating her rights under the Fourteenth Amendment’s Equal
Protection Clause, arising out of an alleged hostile work environment, and retaliation claims
under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et
seq. Oliver v. New York State Police, No. 15-cv-00444, 2020 WL 1989180, at *53, 2020 U.S.
Dist. LEXIS 73284, at *168–70 (N.D.N.Y. Apr. 27, 2020). Presently before the Court is
Plaintiff’s request for the appointment of trial counsel. (Dkt. No. 344). Plaintiff’s request for
appointment of counsel is denied, but if Plaintiff has not retained counsel by the time of trial the
Court will appoint standby counsel to be present at trial for the purpose of assisting Plaintiff in
the orderly presentation of her case at trial.
II.

BACKGROUND
On April 14, 2015, Plaintiff filed this action pro se. (Dkt. No. 1). On October 16, 2015,

counsel appeared on Plaintiff’s behalf. (Dkt. No. 20). On July 3, 2018, following filing of
amended pleadings, (Dkt. Nos. 29, 37), litigation of a dismissal motion, (Dkt. Nos. 41, 57, 63),
commencement of discovery, (Dkt. No. 84), and completion of mandatory mediation, (Dkt. No.
94), Plaintiff’s counsel moved to withdraw as counsel for Plaintiff. (Dkt. No. 105). After
considering the submissions from Plaintiff and her counsel, and holding an in-person hearing on
the motion, United States Magistrate Judge Daniel J. Stewart granted Plaintiff’s counsels’ motion
to withdraw. (Dkt. No. 109). This action was stayed for thirty days to allow Plaintiff to retain
new counsel or determine whether to proceed pro se. (Dkt. No. 110). On July 9, 2018, Plaintiff
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filed a letter indicating that she had paid former counsel $47,000 prior to their withdrawal, and
that she had “contacted dozens of law firms and advocacy centers over the past month . . . trying
to secure legal representatives,” but had been unsuccessful. (Dkt. No. 111, at 1). Plaintiff
requested that the Court appoint her “an experienced employment attorney,” who she was “more
than willing” to pay $1,000 per month to handle her case. (Id. at 3).
After analyzing the factors set forth in Hodge v. Police Officers, 802 F.2d 58, 61–62 (2d
Cir. 1986), and presuming the merit of Plaintiff’s claims, Magistrate Judge Stewart denied
Plaintiff’s request for counsel without prejudice, noting, among other things, “her ability to
analyze and communicate legal issues.” (Dkt. No. 112, at 2). On August 16, 2018, Plaintiff
advised Magistrate Judge Stewart that she was continuing in her efforts to retain counsel but was
prepared to proceed pro se. (Text Minute Entry, Aug. 16, 2018). To date, Plaintiff has ably
handled the extensive litigation in this case, including the completion of discovery and
responding to Defendants’ motions for summary judgment. (Dkt. Nos. 256, 259).
During a telephone conference on May 21, 2020, the Court raised the issue of trial
counsel with Plaintiff, who advised that she has “never stopped trying to find legal counsel since
her attorney withdrew from the case.” (Dkt. No. 340, at 3). The Court directed Plaintiff to
continue to look and to file a status report regarding her efforts, and advised Plaintiff that it could
consider appointing trial counsel. (Id. at 5).
On June 22, 2020, Plaintiff filed a status report outlining her efforts to obtain counsel and
the difficulties she has encountered: “To date, I have contacted more than 50 law firms who were
either unwilling to take over a case . . . or wanted a minimum of $10,000 down, which I simply
do not have the money to pay.” (Dkt. No. 344, at 1). In addition, her efforts to “negotiate

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payment arrangements with various law firms,” have been unsuccessful. (Id.). Plaintiff has
therefore requested that the Court consider granting her legal counsel for trial. (Id.).
On August 5, 2020, the Court had a telephone conference with Plaintiff concerning her
application for appointment of counsel. At this conference, Plaintiff stated that she had spoken
with several law firms following the Court’s issuance of the summary judgment ruling but that
“[n]obody wants to touch this case . . . at this stage in these proceedings.” She recounted that she
has paid “close to $70,000, $80,000 in legal fees” to prior counsel. She further stated that one
attorney that she spoke to wanted $30,000 “up front” but that she does not have that money. The
Court explored Plaintiff’s ability to pay for an attorney: Plaintiff indicated that she is currently
employed full-time, though transitioning from Virginia, where she works, to the Buffalo area to
care for her mother, who lives in Plaintiff’s house in Buffalo. Plaintiff “fully support[s]” her
mother and pays for all house expenses. Plaintiff also pays for an apartment in Virginia. Plaintiff
has a small retail and commercial business, but it “is not profitable and it tends to fluctuate . . .
especially during this COVID-19” pandemic.
Following the telephone conference, Plaintiff filed a letter in further support of her
request for appointment of counsel. (Dkt. No. 351).
III.

LEGAL STANDARD
The decision of whether to appoint counsel to a pro se litigant in a Title VII action is

governed by 42 U.S.C. § 2000e–5(f)(1), which provides that “[u]pon application by the
complainant and in such circumstances as the court may deem just, the court may appoint an
attorney.” The Second Circuit has instructed that in determining whether to appoint counsel, “[a]
court should assess a plaintiff’s ability to afford a private attorney, although the litigant need not
be destitute before an appointment is made.” Jenkins v. Chem. Bank, 721 F.2d 876, 880 (2d Cir.
1983). “In addition, consideration should be given to the efforts taken by the plaintiff to obtain a
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lawyer” and “[a]t a minimum, there must be evidence of a ‘reasonably diligent effort under the
circumstances.’” Id. (quoting Bradshaw v. Zoological Soc. of San Diego, 662 F.2d 1301, 1319
(9th Cir. 1981)). “The court might look at the availability of counsel in its geographical area and
the plaintiff’s possible skill or lack of skill at obtaining such help as well as at the number of
contacts with potential counsel.” Id.
The Second Circuit has observed that “[d]istrict courts exercise substantial discretion in
deciding whether to appoint counsel, subject to the principles we have set forth in Hodge v.
Police Officers,” including whether the plaintiff’s “position seems likely to be of substance,” the
plaintiff’s “ability to investigate the crucial facts, whether conflicting evidence implicating the
need for cross-examination will be the major proof presented,” the plaintiff’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.” Ferrelli v. River Manor Health
Care Ctr., 323 F.3d 196, 203–04 (2d Cir. 2003) (quoting Hodge, 802 F.2d at 61–62). In deciding
whether to appoint counsel, courts must be mindful that “[v]olunteer lawyer time is a precious
commodity” that “should not be allocated arbitrarily.” Cooper v. A. Sargenti Co., 877 F.2d 170,
172 (2d Cir.1989).
IV.

DISCUSSION
Unlike the majority of cases where the Court appoints counsel, Plaintiff is not, and does

not claim to be, indigent. Indeed, she represents that she is able and willing to pay counsel, if not
a lump sum, on a monthly basis. But in this Title VII case, a plaintiff’s ability to pay is not the
only consideration. Jenkins, 721 F.2d at 880. The maturity and voluminous nature of this case
appear to have been a deterrent to attorneys’ willingness to agree to represent Plaintiff in this
matter. Indeed, Plaintiff indicates she has contacted more than fifty attorneys and that either they

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refused to take her case or she could not pay the retainer. (Dkt. No. 344, at 1). The April 27,
2020 summary judgment ruling, however, significantly narrowed the issues in this case.
Although Plaintiff continued to seek counsel following the Court’s summary judgment ruling,
she has been unsuccessful.
Turning to the factors set forth in Hodge, the Court observes that Plaintiff’s position
seems likely to be of substance. Not only did the EEOC issue a finding of probable cause as to
retaliation, but two of Plaintiff’s Title VII retaliation claims survived summary judgment and
will proceed to trial. See Candelaria v. Coughlin, No. 96-2794, 133 F.3d 906, 1997 WL 796148,
at *3, 1997 U.S. App. LEXIS 36430, at *9 (2d Cir. Dec. 31, 1997) (unpublished table opinion)
(“Considering that Candelaria’s action survived defendants’ motion for summary judgment and
proceeded to trial, it may be argued that the issues he raised met the standard of ‘likely merit’ to
warrant appointment of counsel.”). Further, at least one of Plaintiff’s claims—the § 1983 hostile
work environment claim against Defendant Paul Kelly—will involve factual issues that turn on
credibility, and Plaintiff’s case would benefit from an effective cross-examination. The Court is
also mindful that the remaining claims, against four Defendants, are somewhat complex for a
layperson, and that between them, Defendants are represented by two well-respected law firms
and four attorneys. At the same time, Plaintiff has shown herself to be articulate and smart, and
an able investigator and litigator. And the Court has concerns as to whether, in light of Plaintiff’s
history with counsel, she would be amenable to following the advice of pro bono counsel
appointed by the Court. (See Dkt. Nos. 105-3, 109).1

1

The Court notes that Plaintiff states that she would “fully abide with the guidance and direction” of appointed legal
counsel, (Dkt. No. 351, at 2).

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While this case is somewhat complex, effective cross-examination would be helpful, and
Plaintiff faces formidable defense counsel, the Court notes that Plaintiff is not without financial
resources and she has successfully litigated this case to date. After considering all of the
competing factors, the Court denies Plaintiff’s request for appointment of counsel, but concludes
that appointment of standby counsel to be present to assist Plaintiff at trial is “more likely to lead
to a just determination.” Ferrelli, 323 F.3d at 204. Therefore, if Plaintiff does not have trial
counsel by the time of trial, the Court will appoint standby counsel to be present at trial to assist
Plaintiff in the orderly presentation of this case. Plaintiff will, however, still be representing
herself, with the entire responsibility for her representation.
The Court encourages Plaintiff to continue to seek counsel to represent her at trial. The
Court notes that the Onondaga County Bar Association has a lawyer referral service that may be
of assistance to Plaintiff. See www.onbar.org/find-a-lawyer/request-lawyer-referral. However, if
Plaintiff, is unsuccessful in finding an attorney to represent her at trial, the Court will appoint
standby counsel to be present at trial to assist Plaintiff in the orderly presentation of her case
during trial.
V.

CONCLUSION
For these reasons, it is hereby
ORDERED that Plaintiff’s request for appointment of counsel (Dkt. No. 344) to

represent her at trial is DENIED; and it is further
ORDERED that if Plaintiff has not retained counsel to represent her at trial, the Court
will appoint standby trial counsel to be present at trial to assist Plaintiff in the orderly
presentation of her case at trial. The Court will appoint standby counsel after the completion of
pre-trial submissions and after the final pre-trial conference and shortly before trial. This

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appointment will be limited as standby counsel will not be Plaintiff’s representative in this case:
Plaintiff will continue to be responsible for the presentation of her case. The role of standby
counsel will be to provide guidance to assist Plaintiff in the orderly presentation of her case at
trial. This ruling does not preclude Plaintiff from hiring her own counsel to represent her in this
matter; the Court encourages Plaintiff to continue to seek counsel to represent her at trial;2 and it
is further
ORDERED that the Clerk serve this Order in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 9, 2020
Syracuse, New York

2

The appointment will be limited to standby counsel for trial. Any appeal shall remain Plaintiff’s responsibility
alone unless a motion for appointment of counsel for an appeal is granted.

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