Rainwater v. United States of America et al

Filing 20

OPINION AND ORDER: Accordingly, plaintiff's application to have his case added to the list of cases considered by the Court's Pro Bono Panel is denied without prejudice to renewal. Any renewed application should consider the pertinent factors cited above. (Signed by Magistrate Judge Henry B. Pitman on 6/21/2010) Copies Mailed By Chambers.(jfe)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------X AARON S. RAINWATER, Plaintiff, -againstUNITED STATES OF AMERICA, et al., : Defendants. : -----------------------------------X PITMAN, United States Magistrate Judge: By an application docketed on November 9, 2009 (Docket Item 9), plaintiff moves for pro bono counsel.1 For the reasons : : : 08 Civ. 5115 (PKC)(HBP) OPINION AND ORDER

set forth below, the motion is denied without prejudice to renewal. 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

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.

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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. 1989). Of

these, "[t]he factor which command[s] the most attention [is] the merits." Id.; accord Odom v. Sielaff, No. 90 Civ. 7659 (DAB), As

1996 WL 208203, at *1 (S.D.N.Y. Apr. 26, 1996) (Batts, D.J.). noted 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, 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.'" (quoting Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986))).

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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, [the court] 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., [the court] reiterated the importance of requiring indigent litigants 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 application establishes both his financial need for pro bono counsel and his prior efforts to obtain a private lawyer. While I am willing to assume that plaintiff is

unfamiliar with the judicial system and will have difficulties litigating the case on his own, the application still fails because it offers nothing to establish the merits of plaintiff's claims. Plaintiff alleges that he suffered injuries as a result of two "security guard[s]/postal police" using excessive force against him shortly after he attempted to retrieve his mail from a post office box on or around May 3, 2006. 3.) (3d Am. Compl. 2,

Construed liberally, plaintiff's Third Amended Complaint

alleges several cognizable, but likely meritless, federal claims.

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To the extent that pla