O'Diah v. TBTA-Triborough Bridge and Tunnel Authority et al

Filing 44

ORDER GRANTING PRO BONO COUNSEL: For the foregoing reasons, the Clerk of Court is directed to attempt to locate pro bono counsel to represent Plaintiff for the limited purposes described above. 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 of time may pass before counsel volunteers to represent Plaintiff. If an attorney volunteers, the attorney will contact Plai ntiff 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 without an attorney. The Court certifies under 28 U.S.C. § 1915(a)(3) that any app eal 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). SO ORDERED. (Signed by Judge Vernon S. Broderick on 7/16/2021) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
7/16/2021

ESE A. O’DIAH,
Plaintiff(s),
-againstTBTA-TRIBOROUGH BRIDGE AND
TUNNEL AUTHORITY,

19-cv-7586 (VSB)
ORDER GRANTING PRO BONO
COUNSEL

Defendant.
Vernon S. Broderick, United States District Judge:
The Court directs that the Clerk of Court seek pro bono counsel to enter a limited
appearance for the purpose of conducting discovery in the above-captioned action. Counsel will
file a Notice of Limited Appearance as Pro Bono Counsel.
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 a civil 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 Court of Appeals set forth the factors a court should
consider in deciding whether to grant a litigant’s request for pro bono counsel. 802 F.2d at 6162. 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 Docs. 1, 3.) Plaintiff therefore qualifies as indigent.
In his amended complaint, Plaintiff, a contracted driver, asserts claims under the
Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution, as well as those for
unjust enrichment, alleging that he has incurred massive violation fees and had his vehicle
registration suspended after he stopped receiving toll-by-mail statements from Defendant. (Doc.
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16.) The Court finds that Plaintiff’s claims is “likely to be of substance,” Hodge, 802 F.2d 6162, given that these claims have survived a motion to dismiss, (see Doc. 39). The Court finds
that the other Hodge factors also weigh in favor of granting Plaintiff’s application, given that
Plaintiff alleges constitutional violations and the fact that document discovery will likely be
essential in this case. Here, representation would “lead to a quicker and more just result by
sharpening the issues and shaping examination.” Hodge, 802 F.2d at 61.
Given the early stage of the proceedings, the Court will request that counsel appear for
the limited purpose of conducting discovery. In addition, pro bono counsel may engage in
settlement discussions.
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.
Pro bono counsel will not be obligated for any aspect of Plaintiff’s representation beyond
the matters described in this order. In particular, pro bono counsel will not be required to
respond to a dispositive motion. In the event that the Defendant files 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 discovery.

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Upon the filing by pro bono counsel of a Notice of Completion, the representation by pro
bono counsel of Plaintiff in this matter will terminate, and pro bono counsel will have no further
obligations or responsibilities to Plaintiff or to the Court in this matter.
CONCLUSION
For the foregoing reasons, the Clerk of Court is directed to attempt to locate pro bono
counsel to represent Plaintiff for the limited purposes described above. 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 of time may pass before counsel
volunteers to represent Plaintiff. 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 without an attorney.
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).
SO ORDERED.
Dated:

July 16, 2021
New York, New York
Vernon S. Broderick
United States District Judge

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