Roesch v. New York State Office of Mental Health, et al

Filing 61

OPINION AND ORDER re: 32 MOTION to Appoint Counsel. filed by Joseph Roesch. Accordingly, for all the foregoing reasons, plaintiff's application for pro bono counsel is denied without prejudice to renewal. Any renewed application should be supported by an affidavit or affirmation discussing the factors identified above. The Clerk of the Court is requested to mark Docket Item 32 as closed. (As further set forth in this Order) (Signed by Magistrate Judge Henry B. Pitman on 8/8/2016) Copies Sent By Chambers. (lmb)

USDCSDNY
DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
JOSEPH ROESCH,

1 ELECfRO~TICALLY FILED

ll~~~:_ ~4~

Plaintiff,
15 Civ. 247

(PAE) (HBP)

-againstMS. ANN MARie SULLIVAN,
Director, Office of Mental
Health of New York State, et al.,

OPINION
AND ORDER

Defendants.

-----------------------------------X
PITMAN, United States Magistrate Judge:

By notice of motion dated February 23, 2015

(Docket

Item 32), plaintiff seeks the appointment of pro bono counsel.
For the reasons set forth below, the motion is denied without
prejudice to renewal.
Plaintiff is a convicted sex offender.

Although he has

competed serving his sentence, he remains confined at the Central
New York Psychiatric Center pursuant to Article 10 of the New
York Mental Hygiene Law. 1

1

Plaintiff brings this action pursuant

New York's Sex Offender Management and Treatment Act
("SOMTA") is codified in Article 10 of the Mental Hygiene Law.
Enacted in 2007, "SOMTA creates a new legal regime authorizing
'civil management' of certain sex offenders after completion of
their prison terms, parole terms, or other period of state
custody.
Such civil management is predicated on the danger to
society that recidivist sex offenders pose.'' Mental Hygiene
(continued ... )

to 42 U.S.C.

§

1983 and is seeking injunctive relief and damages

for defendants' alleged failure to provide him with adequate
legal research resources and/or attorneys, thereby effectively
depriving plaintiff of his constitutional right to access the
courts.

Simultaneously with this opinion and order, I am issuing

a report and recommendation, recommending that plaintiff's
amended complaint be dismissed for lack of subject matter jurisdiction, insufficient service of process and failure to state a
claim on which relief can be granted.
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 availabil-

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
factor which command[s]

(2d Cir. 1989).

the most attention [is]

Cooper v. A.

Of these,

"[t]he

the merits."

Id.; accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203

( • • • continued)
Legal Serv. v. Cuomo, 785 F. Supp. 2d 205, 210 (S.D.N.Y. 2011)
(Batts, D.J.), vacated on other grounds sub nom., Mental Hvqiene
Legal Servs. v. Schneiderman, 472 F. App'x 45 (2d Cir. 2012).
1

For a detailed explanation of the operation of Article 10,
see Roache v. Fischer, 9:12-CV-1034 (LEK/DEP), 2015 WL 1442963
at *5-*6 (N.D.N.Y. Mar. 26, 2015).
2

(S.D.N.Y. Apr. 26, 1996)
F.3d 85, 88

(Batts, J.); see Berry v. Kerik, 366

(2d Cir. 2003).

As noted fifteen years ago 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 v. A. Sargenti Co., supra, 877 F.2d at 174; see also
Hendricks v. Coughlin, 114 F.3d 390, 392
deciding whether to appoint counsel .

(2d Cir. 1997)

("'In

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 prose litigant's claim.
In
Hodge [v. Police Officers, 802 F.2d 58 (2d Cir. 1986)],
[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 prose 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).
3

It appears that plaintiff lacks the financial resources
to retain counsel privately.

Plaintiff attests in his applica-

tion to proceed in forma pauperis that he has "maybe" $35.00 in
his institutional account.

He does not, however, satisfy the

other criteria for the appointment of pro bono counsel.

Plain-

tiff does not provide any information concerning his efforts to
find pro bono counsel on his own nor does he explain why the case
is so complex that plaintiff cannot litigate it without counsel.
Finally, plaintiff has not demonstrated that the case
has sufficient merit to warrant the appointment of pro bono
counsel.

For the reasons stated in the report and recommendation

of even date, plaintiff has not even stated a claim on which
relief can be granted.

As explained in more detail in the report

and recommendation, plaintiff's claim in this action can succeed
only if he can show that, as a result of the alleged lack of
legal research resources or other legal assistance, he was unable
to litigate a nonfrivolous claim concerning either the fact or
duration of his confinement or the conditions of his confinement.
Plaintiff has yet to satisfy either element.

Until plaintiff at

least states a claim, his case lacks sufficient merit to warrant
pro bono counsel. 2

2

In my report and recommendation,

4

I recommend that plaintiff
(continued ... )

Accordingly, for all the foregoing reasons, plaintiff's
application for pro bono counsel is denied without prejudice to
renewal.

Any renewed application should be supported by an

affidavit or affirmation discussing the factors identified above.
The Clerk of the Court is requested to mark Docket Item 32 as
closed.
Dated:

New York, New York
August 8, 2016
SO ORDERED

'', L,__

./~

' .

HE~Y PIT~__./ '--7'-'/f~,
United States Magistrate Judge
Copies transmitted to:
Mr. Joseph Roesch
ID No. 173071
Ward 604
Central New York Psychiatric Center
P.O. Box 300
Marcy, New York 13403
Abigail E. Rosner, Esq.
Assistant Attorney General
State of New York
120 Broadway
New York, New York 10271

( • • • continued)
be granted an opportunity to re-plead his claims.
If plaintiff
can re-plead his claims successfully, he can re-apply for the
appointment of counsel.
2

5