Minus v. New York City Police Department et al

Filing 78

ORDER : The Clerk of Court is directed to attempt to locate pro bono counsel to represent plaintiff. The Court advises Plaintiff that there are no funds to retain counsel in civil cases and the Court relies on volunteers. Due to a scarcity of volunteer attorneys, a lengthy period may pass before counsel volunteers to represent Plaintiff. Nevertheless, this litigation will progress at a normal pace. If an attorney volunteers, the attorney will contact Plaintiff directly. There is no gu arantee, however, that a volunteer attorney will decide to take the case, and Plaintiff should be prepared to proceed with the case pro se. If Plaintiff does not want the Court to seek counsel to represent him, he must inform the Court by Friday, December 20, 2019. If Plaintiff has already found a volunteer attorney to represent him, the Court requests that Plaintiff's counsel so inform the Court immediately and contact the assigned Magistrate Judge to schedule a settlement conference to occur as soon as possible, pursuant to ECF No. 77. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore IFP status is denied for the purpose of an appeal. See Coppe dge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Order to the Plaintiff. SO ORDERED. (Signed by Judge Jesse M. Furman on 12/4/19) (yv) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
OMAR MINUS,
:
:
Plaintiff,
:
:
-v:
:
OFFICER BRIAN BENVENUTO, SHIELD NO. 23866; :
and OFFICER JOSEPH TENNARIELLO, SHIELD NO. :
12821,
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Defendants.
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:
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17-CV-4623 (JMF) (DCF)
ORDER

JESSE M. FURMAN, United States District Judge:
For the reasons stated below, the Court directs the Clerk of Court to seek pro bono
counsel to represent Plaintiff in the above-captioned action for settlement purposes or, should
settlement not be reached, for trial.
LEGAL STANDARD
The in forma pauperis statute provides that the courts “may request an attorney to
represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Unlike in criminal
cases, in civil cases, there is no requirement that courts supply indigent litigants with counsel.
Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986). Instead, the courts have “broad
discretion” when deciding whether to seek pro bono representation for an indigent litigant. Id.
Even if a court does believe that a litigant should have a free lawyer, under the in forma pauperis
statute, a court has no authority to “appoint” counsel, but instead, may only “request” that an
attorney volunteer to represent a litigant. Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490
U.S. 296, 301–310 (1989). Moreover, courts do not have funds to pay counsel in civil matters.
Courts must therefore request the services of pro bono counsel sparingly, and with reference to

public benefit, in order to preserve the “precious commodity” of volunteer-lawyer time for those
litigants whose causes are truly deserving. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73
(2d Cir. 1989).
In Hodge, the Second Circuit set forth the factors a court should consider in deciding
whether to grant an indigent litigant’s request for pro bono counsel. 802 F.2d at 61-62. Of
course, the litigant must first demonstrate that he or she is indigent, for example, by successfully
applying for leave to proceed in forma pauperis. The court must then consider whether the
litigant’s claim “seems likely to be of substance” — “a requirement that must be taken
seriously.” Id. at 60–61. If these threshold requirements are met, the court must next consider
such factors as:
the indigent’s ability to investigate the crucial facts, whether conflicting evidence
implicating the need for cross-examination will be the major proof presented to
the fact finder, the indigent’s ability to present the case, the complexity of the
legal issues[,] and any special reason in that case why appointment of counsel
would be more likely to lead to a just determination.
Id.; see also Cooper, 877 F.2d at 172 (listing factors courts should consider, including litigant’s
efforts to obtain counsel). In considering these factors, district courts should neither apply
bright-line rules nor automatically deny the request for counsel until the application has survived
a dispositive motion. See Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Rather,
each application must be decided on its own facts. See Hodge, 802 F.2d at 61.
DISCUSSION
Plaintiff filed a Request to Proceed in Forma Pauperis (IFP), which the Court granted.
See ECF No. 4. Plaintiff therefore qualifies as indigent.
In the complaint, Plaintiff asserts several claims under 42 U.S.C. § 1983, against officers
from the New York Police Department (“NYPD”) relating to an April 29, 2015 traffic stop and
subsequent arrest. See ECF No. 47 (“SAC”), at 4-6. Several of Plaintiff’s claims were dismissed
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yesterday by Opinion and Order. See ECF No. 76 (“Order”), at 10. Plaintiff’s remaining claim
alleges that two officers unlawfully strip-searched him while he was in their custody at the 6th
Precinct of the New York City Police Department. See SAC 4-5.
As discussed in the Court’s Opinion and Order, the Court finds that Plaintiff’s unlawful
strip search claim is “likely to be of substance.” Hodge, 802 F.2d 61-62; see Order 8-11. The
gravamen of Plaintiff’s claim lies in the where and why the strip search occurred. According to
uncontested facts taken from Defendants’ Local 56.1 statement and supporting documents, on
April 29, 2015, NYPD officers arrested Plaintiff for a misdemeanor traffic violation, transported
him to the precinct, and there, the two named defendants strip-searched Plaintiff at the direction
of a supervising officer based on little or nothing more than the supervising officer’s knowledge
that Plaintiff was a “known drug dealer.” See ECF No. 71-14 (“56.1 Statement”), ¶¶ 6-7, 11-13.
Given the Second Circuit’s long-standing precedent that there must be an individualized
reasonable suspicion to strip-search a misdemeanant, see Hartline v. Gallo, 546 F.3d 95, 100 (2d
Cir. 2008) (collecting cases), Plaintiff “appears to have some chance of success” as required by
Hodge, see 802 F.2d at 60-61.
The Court similarly finds that the other Hodge factors weigh in favor of granting
Plaintiff’s application. As a former inmate with little legal or otherwise professional experience,
Plaintiff demonstrated during the discovery process that he was unable to thoroughly investigate
crucial facts. Furthermore, by separate order, the Court referred this matter to the assigned
Magistrate Judge for settlement purposes. See ECF No. 77. Whether during settlement
discussions or trial proceedings, representation would “lead to a quicker and more just result by
sharpening the issues and shaping examination” and negotiation. Hodge, 802 F.2d at 61.

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Given the late stage of the proceedings, the Court will request that counsel appear for
both settlement and trial purposes. If counsel elects to represent Plaintiff only for settlement
purposes, counsel will file a Notice of Limited Appearance of Pro Bono Counsel. Otherwise,
counsel will file a Notice of Appearance of Pro Bono Counsel. Both forms are available at
https://nysd.uscourts.gov/forms?field_form_category_target_id=24&title=&sort_by=title.
Under the Court’s Standing Order regarding the Creation and Administration of the Pro
Bono Fund (16-MC-0078), pro bono counsel may apply to the Court for reimbursement of
certain out-of-pocket expenses spent in furtherance of Plaintiff’s case. The Pro Bono Fund is
especially intended for attorneys for whom pro bono service is a financial hardship. See
http://www.nysd.circ2.dcn/docs/prose/pro_bono_fund_order.pdf.
Should pro bono counsel elect to represent Plaintiff for the limited purposes of
settlement, pro bono counsel will not be obligated for any aspect of Plaintiff’s representation
beyond settlement. In particular, pro bono counsel will not be required to respond to a
dispositive motion. In the event that Defendants file a dispositive motion, pro bono counsel may
seek appropriate relief, including an extension of Plaintiff’s time to respond, or an expansion of
pro bono counsel’s role to include responding to the motion. Absent an expansion of the scope
of pro bono counsel’s representation, pro bono counsel’s representation of Plaintiff will end upon
completion of settlement. The Court will consider expanding the appearance for all purposes
later in the case.
Should pro bono counsel elect to represent Plaintiff for both settlement and trial purposes,
pro bono counsel will be obligated for all aspects of Plaintiff’s representation as described in this
order. Once the commitment is made, the Court will not consider limiting the appearance later in
the case.

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CONCLUSION
For the foregoing reasons, the Clerk of Court is directed to attempt to locate pro bono
counsel to represent Plaintiff. The Court advises Plaintiff that there are no funds to retain
counsel in civil cases and the Court relies on volunteers. Due to a scarcity of volunteer
attorneys, a lengthy period may pass before counsel volunteers to represent Plaintiff.
Nevertheless, this litigation will progress at a normal pace. If an attorney volunteers, the
attorney will contact Plaintiff directly. There is no guarantee, however, that a volunteer attorney
will decide to take the case, and Plaintiff should be prepared to proceed with the case pro se.
If Plaintiff does not want the Court to seek counsel to represent him, he must inform the
Court by Friday, December 20, 2019. If Plaintiff has already found a volunteer attorney to
represent him, the Court requests that Plaintiff’s counsel so inform the Court immediately and
contact the assigned Magistrate Judge to schedule a settlement conference to occur as soon as
possible, pursuant to ECF No. 77.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would
not be taken in good faith and therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of the Court is directed to mail a copy of this Order to the Plaintiff.
SO ORDERED.
Dated: December 4, 2019
New York, New York

__________________________________
JESSE M. FURMAN
United States District Judge

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