Drew v. City of New York et al

Filing 25

OPINION AND ORDER re: 4 MOTION to Appoint Counsel. filed by Keith Drew. Accordingly, for all the foregoing reasons, plainiff's application for pro bono counsel is denied without prejudice to renewal. Any renewed application should be s upported by an affidavit or affirmation discussing the factors identified above. The Clerk of the Court is requested to mark Docket Item 4 as closed. (As further set forth in this Order) (Signed by Magistrate Judge Henry B. Pitman on 7/7/2016) Copies Sent By Chambers. (lmb)

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DOCU!\ffiNT
ELECTRONICALLY F1LED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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KEITH DREW,
15 Civ. 7073

Plaintiff,

(PKC) (HBP)

OPINION
AND ORDER

-againstTHE CITY OF NEW YORK, et al.,
Defendants.

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PITMAN, United States Magistrate Judge:

By notice of motion dated August 31, 2015

(Docket Item

4), plaintiff seeks the appointment of pro bono counsel.

For the

reasons set forth below, the motion is denied without prejudice
to renewal.
This is a civil rights action brought under 42 U.S.C.

§

1983 by a pretrial detainee in the custody of the New York City
Department of Corrections.

Plaintiff alleges in pertinent part

that he engaged in various forms of protest as a result of being
denied a telephone and a fully functional cell; according to
plaintiff, his protests included removing his clothing and
intentionally flooding his cell.

Plaintiff claims that as a

result of these protests, he was beaten by Department of Corrections personnel and subsequently denied appropriate medical care.
Plaintiff alleges that he sustained a broken nose, broken ribs

and unspecified damage to his testicles as a result of the
beating.
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 (2d Cir. 1989).

Cooper v. A.

Of these,

"[t]he

factor which command[s] the most attention [is] the merits."
Id.; accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203
(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.'").
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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 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).
Although I am willing to assume that plaintiff lacks
the financial resources to retain counsel privately, it does not
appear that he has satisfies any of the other criteria.

Plain-

tiff states that he has contacted only two attorneys in an effort
to secure pro bono counsel.

Although plaintiff makes the

conclusory assertion in his application for counsel that the case
involves "complex legal issues," the factual and legal issues
seem relatively straight forward, namely whether defendants used
force against plaintiff and, if so, was the force used either
unnecessary or disproportionate to the situation.

Most impor-

tantly, although the case is still in its early stages and it
appears that no discovery has been conducted yet, it does not
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appear at the present time that the case has sufficient merit to
warrant the my requesting counsel to volunteer to represent
plaintiff.

Plaintiff cites no evidence that might corroborate

his claim, and, based on the current content of the record, it
appears that the only evidence at a trial would be plaintiff's
uncorroborated testimony and the testimony of several correction
officers who will, in all probability, testify that any force
used was justified by plaintiff's behavior.

Although plaintiff's

uncorroborated testimony, if credited, would be sufficient to
prove his case, see United States v. Danzey, 594 F.2d 905, 916
(2d Cir. 1979) (" [T]he testimony of a single, uncorroborated
eyewitness is generally sufficient to" prove a proposition beyond
a reasonable doubt.), the apparent absence of evidence other than
plaintiff's testimony leads me to conclude that the case is
fairly weak.
Accordingly, for all the foregoing reasons, plainiff'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.

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The Clerk of the Court is requested to mark Docket Item 4 as
closed.
Dated:

New York, New York
July 7, 2016
SO ORDERED

United States Magistrate Judge
Copies transmitted to:
Mr. Keith Drew
Book & Case No. 349-15-08356
Anna M. Kross Center
18-18 Hazen Street
East Elmhurst, New York 11370
Daniel G. Saavedra, Esq.
Assistant Corporation Counsel
City of New York
100 Church Street
New York, New York 10007

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