Forde v. Hanson et al

Filing 25

MEMORANDUM OPINION AND ORDER,#98039 that plaintiff's motion (Docket Item 11) to have his case added to the list of cases circulated to the Pro Bono Panel is denied without prejudice to renewal. Any renewed motion should address the factors identified above. (Signed by Magistrate Judge Henry B. Pitman on 9/15/09) Copies Mailed By Chambers.(pl) Modified on 9/18/2009 (eef).

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------X RENEE FORDE, Plaintiff, -againstOFFICER HANSON, et al., Defendants. : -----------------------------------X PITMAN, United States Magistrate Judge: By notice of motion dated December 29, 2008 (Docket Item 11) plaintiff, who is incarcerated and awaiting removal from the United States, moves for pro bono counsel.1 set forth below, the motion is denied. 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 availabilFor the reasons : : : : : 08 Civ. 3594 (RMB)(HP) MEMORANDUM OPINION AND ORDER

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.

1

ity of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel." Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1986). Cooper v. A.

Of these, "[t]he Id.

factor which command[s] the most attention [is] the merits." Accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203 (S.D.N.Y. April 26, 1996); see Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2003). Appeals: As noted fifteen years ago by the Court of

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.'"). The Court of Appeals for the Second Circuit has stated in various ways the applicable standard for assessing the merits of a pro se litigant's claim. In Hodge [v. Police Officers, 802 F.2d 58 (2d Cir. 1986)], we noted that "[e]ven where the claim is not frivolous, counsel is often unwarranted where the indigent's chances of success are extremely slim," and advised that a district judge should determine whether the pro se litigant's "position seems likely to be of substance," or showed "some chance of success." Hodge, 802 F.2d at 60-61 (internal quotation marks and citation omitted). In Cooper v. A. Sargenti Co., we reiterated the importance of requiring indigent litigants 2

seeking appointed counsel "to first pass the test of likely merit." 877 F.2d 170, 173 (2d Cir. 1989) (per curiam). Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 204 (2d Cir. 2003). Plaintiff's present application is deficient in several respects. Although I am willing to assume that plaintiff lacks

the financial resources to retain a private attorney, plaintiff does not describe any efforts on his own to secure pro bono counsel. Although plaintiff is incarcerated in Florida and that

fact, no doubt, makes it difficult for plaintiff to litigate his claims, the fact that plaintiff is incarcerated, without more, does not warrant the addition of a plaintiff's case to the Pro Bono Panel. Most importantly, plaintiff has not shown that his Plaintiff alleges that he was beaten

claim has sufficient merit.

by two corrections officers when he was incarcerated on Riker's Island in 2007. Accordin