Bell v. DeStefano et al

Filing 45

MEMORANDUM OPINION & ORDER re: 43 APPLICATION for the Court to Request Counsel filed by Amar Bell. On May 30, 2014, Bell filed an application for the Court to request pro bono counsel. Bell states that he requires an attorney "for d iscovery purposes." (Doc. No. 43.) He does not provide any details or additional information. The Second Circuit has articulated the factors that a court should consider in deciding whether to appoint counsel for an indigent civil litiga nt under 28 U.S.C. § 1915(d). The court "exercises substantial discretion, subject to the requirement that it be guided by sound legal principle." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) (citing Jenkins v. Chem ical Bank, 721 F.2d 876, 879 (2d Cir. 1983)). The court's first inquiry is whether plaintiff can afford to obtain counsel. See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). If the court finds that a plaintiff cannot afford counsel, it must then examine the merits of the case and determine whether the indigent's position "seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). "Courts do not perform a 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." Cooper, 877 F.2d at 174. After the two threshold determinations have been made as to indigence and mer it, the court has discretion to consider the following factors: (1) the indigent's ability to investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder; (3) the indigent's ability to present the case; (4) the complexity of the legal issues involved; and (5) any special reason in that case why appointment of counsel would be more likely to lead to a just determination. Hodge, 8 02 F.2d at 61-62. Here, Bell satisfies the threshold requirement of indigence insofar as his in forma pauperis status establishes his inability to afford counsel. It is unclear whether Bell satisfies the second requirement for a meritorious claim. DeStefano's motion to dismiss is pending and, as explained above, Bell has not yet filed a response. Siegel has not yet filed a response to Bell's Second Amended Complaint. Because it is impossible for the Court to determine at this early stage of the case whether Bell's case has merit, Bell's application for the Court to request pro bono counsel is DENIED WITHOUT PREJUDICE. (Signed by Magistrate Judge Ronald L. Ellis on 6/16/2014) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AMARBELL,
Plaintiff,
MEMORANDUM
OPINION & ORDER
12-CV-2533 (ER) (RLE)

- againstLOUIS J. DeSTEFANO, PH.D &
LAWRENCE SIEGEL, M.D.,
Defendants.
RONALD L. ELLIS, United States Magistrate Judge:

Pro se Plaintiff Amar Bell ("Bell"), currently incarcerated at Clinton Correctional
Facility, brings this action pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights
were violated while he was detained at the Westchester County JaiL In his Complaint, Bell
names two doctors, Louis J. DeStefano, Ph.D. ("DeStefano"), and Lawrence Siegel, M.D.l
("Siegel"), as Defendants. Before the Court are: (1) Bell's failure to respond to DeStefano's
motion to dismiss; and (2) Bell's request for the Court to appoint pro bono counseL For the
reasons that follow, Bell is ordered to respond to DeStefano's motion to dismiss; and Bell's
application for the appointment ofpro bono counsel is denied without prejudice.
I.

BELL'S RESPONSE TO THE MOTION TO DISMISS

On April 2, 2014, DeStefano, through counsel, responded to Bell's Amended Complaint
by filing a motion to dismiss, along with a memorandum of law in support of the motion, and a
declaration. (See Doc. Nos. 35-38.) To date, Bell has not responded to DeStefano's motion to
dismiss. Therefore, the Court ORDERS that:
I Bell had originally named as a Defendant
MD." After the Court issued a Valentin Order, the Westchester
County Attorney provided the Court with Dr. Siegel's full name and service address. (See Doc. No. 31.)

(1) Bell must respond to DeStefano's motion no later than July 7,2014; and
(2) DeStefano's reply papers, if any, shall be served no later than July 14, 2014.
Should Bell fail to respond to the motion to dismiss, the Court will consider the issue
fully briefed and will decide the motion to dismiss based on DeStefano's motion alone.
III.

BELL'S APPLICATION FOR THE COURT TO REQUEST PRO BONO

COUNSEL

On May 30,2014, Bell filed an application for the Court to request pro bono counsel.
Bell states that he requires an attorney "for discovery purposes." (Doc. No. 43.) He does not
provide any details or additional information.
The Second Circuit has articulated the factors that a court should consider in deciding
whether to appoint counsel for an indigent civil litigant under 28 U.S.C. § 1915(d). The court
"exercises substantial discretion, subject to the requirement that it be guided by sound legal
principle." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) (citing Jenkins v.

Chemical Bank, 721 F.2d 876, 879 (2d Cif. 1983)). The court's first inquiry is whether plaintiff
can afford to obtain counseL See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d
Cir. 1994). If the court finds that a plaintiff cannot afford counsel, it must then examine the
merits of the case and determine whether the indigent's position "seems likely to be of
substance." Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). "Courts do not
perform a service if they appoint a volunteer lawyer to a case which a private lawyer would not
take ifit were brought to his or her attention." Cooper, 877 F.2d at 174.
After the two threshold determinations have been made as to indigence and merit, the
court has discretion to consider the following factors: (1) the indigent's ability to investigate the
crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be
the major proof presented to the fact finder; (3) the indigent's ability to present the case; (4) the
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complexity of the legal issues involved; and (5) any special reason in that case why appointment
of counsel would be more likely to lead to ajust determination. Hodge, 802 F.2d at 61-62.
Here, Bell satisfies the threshold requirement of indigence insofar as his in forma
pauperis status establishes his inability to afford counsel. It is unclear whether Bell satisfies the

second requirement for a meritorious claim. DeStefano's motion to dismiss is pending and, as
explained above, Bell has not yet filed a response. Siegel has not yet filed a response to Bell's
Second Amended Complaint. Because it is impossible for the Court to determine at this early
stage of the case whether Bell's case has merit, Bell's application for the Court to request pro
bono counsel is DENIED WITHOUT PREJUDICE.
SO ORDERED this 16th day of June 2014
New York, New York

The Honorable Ronald L. Ellis
United States Magistrate Judge

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