Cruz v. Lee et al

Filing 55

ORDER REQUESTING PRO BONO COUNSEL: Accordingly, the Court orders that the Office of Pro Se Litigation request an attorney to represent Plaintiff (Signed by Judge Nelson Stephen Roman on 2/17/2023) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

2/17/2023

HERMAN CRUZ,
Plaintiff,

No. 14 Civ. 4870 (NSR)

-against-

ORDER REQUESTING PRO BONO
COUNSEL

W. LEE, et al.,
Defendants.
NELSON S. ROMÁN, United States District Judge:

Pro se Plaintiff Herman Cruz (“Plaintiff”) commenced this action on June 20, 2014. (ECF
No. 1.) On May 12, 2016, Assistant Attorney General Neil Shevlin, who represents Defendants,
advised the Court that pro se Plaintiff suffered a traumatic brain injury that caused bleeding into his
head and resulted in brain damage. (ECF No. 44.) Pursuant to this Court’s Order (ECF No. 53), Mr.
Shevlin produced to the Court, on January 20, 2023, Plaintiff’s medical record from Fiddler’s Green
Manor Home, where Plaintiff currently resides.

Upon in camera review of Plaintiff’s medical record, the Court determines that it is appropriate
to request pro bono counsel for Plaintiff.
LEGAL STANDARD

Unlike in criminal proceedings, the Court does not have the power to obligate attorneys to
represent indigent pro se litigants in civil cases. See Mallard v. U.S. Dist. Court for the S. Dist. of
Iowa, 490 U.S. 296, 308–09 (1989). Instead, pursuant to 28 U.S.C. § 1915(e)(1), the Court may,
at its discretion, order that the Office of Pro Se Litigation request an attorney to represent an
indigent litigant by placing the matter on a list circulated to attorneys who are members of the
Court’s pro bono panel. See Palacio v. City of New York, 489 F. Supp. 2d 335, 344 (S.D.N.Y.
2007).
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The Second Circuit set forth the standards governing the appointment of counsel in pro se
cases in Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997), Cooper v. A. Sargenti Co., 877
F.2d 170, 172 (2d Cir. 1989), and Hodge v. Police Officers, 802 F.2d 58, 60–62 (2d Cir. 1986).
These cases direct the district courts to “first determine whether the indigent’s position seems
likely to be of substance,” Hodge, 802 F.2d at 61, and then, if this threshold is met, to consider
“secondary criteria,” including the pro se litigant’s “ability to obtain representation independently,
and his ability to handle the case without assistance in the light of the required factual investigation,
the complexity of the legal issues, and the need for expertly conducted cross-examination to test
veracity.” Cooper, 877 F.2d at 172; accord Hendricks, 114 F.3d at 392 (quoting Hodge, 802 F.2d
at 61–62). 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. 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, 114 F.3d at 392–93. Rather, each application must be decided on its own facts. See
Hodge, 802 F.2d at 61.
DISCUSSION
As an initial matter, the Court has determined, based on a review of Plaintiff’s IFP
application (ECF No. 2), that Plaintiff qualifies as indigent. Plaintiff has thus satisfied the first
Hodge factor. The Court similarly finds that the other Hodge factors warrants pro bono counsel for
Plaintiff.
Upon in camera review of Plaintiff’s medical record, the Court concludes that Plaintiff’s

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ability to further pursue his claims is limited by his injury. The appointment of pro bono counsel
in this matter would “lead to a quicker and more just result by sharpening the issues.” Hodge, 802
F.2d at 61.
CONCLUSION
Accordingly, the Court orders that the Office of Pro Se Litigation request an attorney to
represent Plaintiff.

Dated:

February 17, 2023
White Plains, New York

SO ORDERED:
________________________________
NELSON S. ROMÁN
United States District Judge

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