Gomez-Kadawid v. Lee et al

Filing 38

ORDER: For the foregoing reasons, Plaintiff's renewed application for the Court to request pro bono counsel is granted, and the Clerk of Court is directed to attempt to locate pro bono counsel to represent Plaintiff for the li mited 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. Plaintiff is also advised that there is no guarantee that a volunteer attorney will decide to take the case, and Plain tiff should therefore be prepared to proceed with the case without an attorney. This 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 statu s is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to mail a copy of this Order to Plaintiff, at the address shown on the Docket. (Signed by Magistrate Judge Debra C. Freeman on 6/3/2021) (mro) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
YAHKIMA GOMEZ-KADAWID,
Plaintiff,

20cv01786 (VEC) (DF)
ORDER

-againstDR. LEE, et al.,
Defendants.

DEBRA FREEMAN, United States Magistrate Judge:
This action, brought under 42 U.S.C. § 1983 by pro se plaintiff Yahkima
Gomez-Kadawid (“Plaintiff”), is based on a limited set of facts and circumstances that arose
during a time when he was in custody at Rikers Island. Specifically, Plaintiff alleges that, after
seeking pain medication for a wisdom tooth that was “partly coming out,” he was taken to
Bellevue Hospital, where his constitutional rights were violated by medical personnel who, he
claims, forced him to undergo a surgical procedure to remove the tooth, under anesthesia,
without his consent. (Complaint, dated Feb. 9, 2020 (Dkt. 2).) Plaintiff further alleges that the
surgery resulted in permanent damage and pain, such that he is now barely able to eat. (See id.)
By Order dated January 4, 2021 (Dkt. 17), this Court denied without prejudice Plaintiff’s
application for the Court to request pro bono counsel to represent him. As of that date, two of
the named defendants seemed to be in default, and the third had not yet been served. This Court
thus reasoned that there was no substantial need for the services of pro bono counsel at that time
and found it an appropriate exercise of its discretion to deny Plaintiff’s request. This Court
further noted, however, that, should any of the defendants appear in the action and seek to defend
against Plaintiff’s claims, revisiting this ruling might be warranted. Now, two of the defendants
have appeared in the case and have filed a motion to dismiss the Complaint, and, although the

U.S. Marshals Service has had some difficulty serving the third defendant, it seems likely that
the service issues will be remedied shortly. Accordingly, at the initial pretrial conference held on
June 2, 2021, this Court permitted Plaintiff to make an oral application to renew his request for
the Court to seek counsel for him, and that request is now granted.
Specifically, this Court directs that the Clerk of Court seek pro bono counsel to enter a
limited appearance for the purpose of assisting Plaintiff in (1) responding to the pending motion
to dismiss, and (2) conducting discovery, should the case move forward. 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, 301-10 (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
2

61-62. Of course, the litigant must first demonstrate that he or she is indigent, by, for example,
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) (noting
that “[i]t is often likely that the assistance of a lawyer will be vital to surviving a potentially
dispositive adverse motion”). Rather, each application must be decided on its own facts. See
Hodge, 802 F.2d at 61.
DISCUSSION
In this case, Plaintiff filed a Request to Proceed in Forma Pauperis (IFP), which the
Court granted. (See Dkt. 7.) Plaintiff therefore qualifies as indigent. In addition, regardless of
whether Plaintiff’s Complaint will ultimately survive the pending motion to dismiss, this Court
nonetheless finds that his claim that his rights were violated by his being subjected to invasive
surgery without his consent is “likely to be of substance,” Hodge, 802 F.2d 61-62; see Wells v.
Hanlon, No. 9:17-CV-0468 (LEK/DEP), 2018 WL 2437640, at *7 (N.D.N.Y. May 7, 2018)
(declining to recommend dismissal of Section 1983 claim where plaintiff plausibly alleged that,

3

as a prisoner, he was forcibly subjected to surgery without his consent), report and
recommendation adopted by 2018 WL 2435166 (N.D.N.Y. May 30, 2018). Further, this Court
finds that the other Hodge factors also weigh in favor of granting Plaintiff’s application.
Plaintiff has informed this Court that he was recently transferred from a psychiatric
facility to Sing Sing Correctional Facility, where he has not identified anyone who might be able
to help him with preparing papers in this case. Although, at the June 2, 2021 conference, this
Court set a deadline for Plaintiff to submit his opposition to the pending motion to dismiss, it
appeared that Plaintiff was very uncertain as to how to prepare such papers and, especially in
light of his mental health difficulties, that he would benefit from assistance. Further, should this
case proceed to discovery, Plaintiff would likely have difficulty conducting depositions and
engaging in other discovery. Representation in this case would “lead to a quicker and more just
result by sharpening the issues and shaping examination.” Hodge, 802 F.2d at 61.
Given the still-early stage of the proceedings, the Court will request that counsel appear
for the limited purposes of: assisting Plaintiff in preparing a response to the pending motion to
dismiss (for which this Court will grant an extension, should pro bono counsel request one), and
then – if discovery were to proceed – defending Plaintiff’s deposition, if noticed; conducting
document discovery; and, to the extent necessary to develop the evidentiary record, conducting
depositions of the defendants in this case. Pro bono counsel may, but is not required to, conduct
additional discovery which, in the exercise of his or her good faith judgment, counsel deems
necessary. 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

4

especially intended for attorneys for whom pro bono service is a financial hardship. See
https://nysd.uscourts.gov/forms/pro-bono-fund-order.
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 motion for summary judgment or to represent Plaintiff at trial, should the case
progress to trial. In the event that any of the defendants file a motion for summary judgment,
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.
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, Plaintiff’s renewed application for the Court to request
pro bono counsel is granted, and 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. Plaintiff is also advised that there is no guarantee that a volunteer attorney will decide
to take the case, and Plaintiff should therefore be prepared to proceed with the case without an
attorney.

5

This 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 Court is directed to mail a copy of this Order to Plaintiff, at the address
shown on the Docket.
Dated: New York, New Yok
June 3, 2021
SO ORDERED
_____________________________
DEBRA FREEMAN
United States Magistrate Judge

6