Colson v. Mingo et al

Filing 132

ORDER denying 118 Motion to Appoint Counsel. On September 27, 2022, Plaintiff moved for appointment of pro bono counsel. ECF No. 118. The Court reserved judgment on Plaintiff's request pending submission of Defendants' motion for sum mary judgment. ECF No. 120. On March 30, 2023, Defendants filed their motion. ECF No. 125. In determining whether to grant an application for counsel, the Court must consider "the merits of [the] plaintiff's case, the plaintiff's abi lity to pay for private counsel, his efforts to obtain a lawyer, the 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., Inc., 877 F.2d 1 70, 172 (2d Cir. 1989) (per curiam). The first factor the merits of the plaintiffs case is, however, a "threshold requirement"; only if the plaintiff's case "seems likely to be of substance" should the Court "conside r [the] other criteria." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986); Cooper, 877 F.2d at 172. The Court must also be cognizant of the fact that volunteer attorney time is a precious commodity and, thus, should not be granted indiscriminately. Cooper, 877 F.2d at 172. Applying these standards, Plaintiff's request is DENIED. The Court reserves judgment on Defendants' motion, but having reviewed the record in this case, the Court concludes that Plaintiff' ;s claims fail to "pass the test of likely merit" and thus that appointment of counsel is not warranted. Id. at 173. Plaintiff shall file any opposition to Defendants' motion by May 12, 2023. Defendants shall file any reply within on e week of Plaintiff's opposition. If Plaintiff wishes to cross-move for summary judgment, he must file a single, consolidated memorandum of law in support of his cross-motion and in opposition to Defendants' motion by the date set forth a bove. In that instance, Defendants' consolidated memorandum of law in reply to Plaintiff's opposition and in opposition to Plaintiff's motion would be due two weeks later and any reply by Plaintiff would be due two weeks after Defen dants' reply/opposition. Plaintiff is advised that there is a legal clinic in this District to assist people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assista nce Group; it is not part of, or run by, the Court (and, among other things, therefore cannot accept filings on behalf of the Court, which must still be made by any pro se party through the Pro Se Intake Unit). To receive limited-scope assistance from the Clinic, Plaintiff may mail a signed retainer and intake papers to the NYLAG Pro Se Clinic at 40 Foley Square, Room LL22, New York, NY 10007. Once the paperwork is received, the Clinic will coordinate contact with the litigant, which may take up to two weeks. A copy of the Clinic's retainer and intake paperwork is attached to this Order. The Clerk of the Court is directed to terminate ECF No. 118 and to mail a copy of this Order to Plaintiff. SO ORDERED.. (Signed by Judge Jesse M. Furman on 3/31/2023) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
RONALD R. COLSON,
:
:
Plaintiff,
:
:
-v:
:
WARDEN MINGO et al.,
:
:
Defendants.
:
:
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18-CV-2765 (JMF)
ORDER

JESSE M. FURMAN, United States District Judge:
On September 27, 2022, Plaintiff moved for appointment of pro bono counsel. ECF No.
118. 1 The Court reserved judgment on Plaintiff’s request pending submission of Defendants’
motion for summary judgment. ECF No. 120. On March 30, 2023, Defendants filed their
motion. ECF No. 125.
In determining whether to grant an application for counsel, the Court must consider “the
merits of [the] plaintiff’s case, the plaintiff’s ability to pay for private counsel, his efforts to
obtain a lawyer, the 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., Inc., 877 F.2d 170, 172 (2d
Cir. 1989) (per curiam). The first factor — the merits of the plaintiff’s case — is, however, a
“threshold requirement”; only if the plaintiff’s case “seems likely to be of substance” should the
Court “consider [the] other criteria.” Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986);

1

This is Plaintiff’s third request for appointment of pro bono counsel. See ECF Nos. 3, 42.
The Court denied the first without prejudice as premature, ECF No. 8, and granted the second for
the limited purpose of assisting with discovery, ECF No. 45. That pro bono counsel’s
representation ended on August 25, 2022, once discovery was completed. ECF No. 117.

Cooper, 877 F.2d at 172. The Court must also be cognizant of the fact that volunteer attorney
time is a precious commodity and, thus, should not be granted indiscriminately. Cooper, 877
F.2d at 172. Applying these standards, Plaintiff’s request is DENIED. The Court reserves
judgment on Defendants’ motion, but having reviewed the record in this case, the Court
concludes that Plaintiff’s claims fail to “pass the test of likely merit” and thus that appointment
of counsel is not warranted. Id. at 173.
Plaintiff shall file any opposition to Defendants’ motion by May 12, 2023. Defendants
shall file any reply within one week of Plaintiff’s opposition. If Plaintiff wishes to cross-move
for summary judgment, he must file a single, consolidated memorandum of law in support of his
cross-motion and in opposition to Defendants’ motion by the date set forth above. In that
instance, Defendants’ consolidated memorandum of law in reply to Plaintiff’s opposition and in
opposition to Plaintiff’s motion would be due two weeks later and any reply by Plaintiff would
be due two weeks after Defendants’ reply/opposition.
Plaintiff is advised that there is a legal clinic in this District to assist people who are
parties in civil cases and do not have lawyers. The Clinic is run by a private organization called
the New York Legal Assistance Group; it is not part of, or run by, the Court (and, among other
things, therefore cannot accept filings on behalf of the Court, which must still be made by any
pro se party through the Pro Se Intake Unit).
To receive limited-scope assistance from the Clinic, Plaintiff may mail a signed retainer
and intake papers to the NYLAG Pro Se Clinic at 40 Foley Square, Room LL22, New York, NY
10007. Once the paperwork is received, the Clinic will coordinate contact with the litigant,
which may take up to two weeks. A copy of the Clinic’s retainer and intake paperwork is
attached to this Order.

2

The Clerk of the Court is directed to terminate ECF No. 118 and to mail a copy of this
Order to Plaintiff.
SO ORDERED.
Dated: March 31, 2023
New York, New York

__________________________________
JESSE M. FURMAN
United States District Judge

3

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