James v. Gage et al

Filing 115

ORDER : As set forth below, the motion for appointment of pro bono counsel is DENIED without prejudice to renew at a later date. While the Court's conclusion may well change as the action progresses, the Court does not find any circumstanc es warranting the appointment of pro bono counsel at this time. As such, Plaintiff's application for pro bono counsel is DENIED without prejudice to renew at a later stage in the proceedings. The Clerk of the Court is respectfully directed to mail a copy of this Order to Plaintiff. SO ORDERED (Signed by Judge Philip M. Halpern on 4/26/2021) (ks) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TRAVIS JAMES,
ORDER

Plaintiff,
-against-

15-CV-00106 (PMH)

DANA GAGE, et al.,
Defendants.
PHILIP M. HALPERN, United States District Judge:
Plaintiff Travis James (“Plaintiff”), proceeding pro se and in forma pauperis, alleges under
42 U.S.C. § 1983 that his constitutional rights were violated while he was incarcerated at Sing
Sing Correctional Facility (“Sing Sing”) in Ossining, New York. (See Doc. 83). Pending presently
before the Court is Plaintiff’s request that the Court provide him with pro bono counsel. (Doc.
113). As set forth below, the motion for appointment of pro bono counsel is DENIED without
prejudice to renew at a later date.
Unlike in criminal proceedings, in civil cases, the Court does not have the power to obligate
attorneys to represent indigent pro se litigants in civil cases. Mallard v. U.S. Dist. Ct. for the S.
Dist. of Iowa, 490 U.S. 296, 301-10 (1989). Instead, pursuant to 28 U.S.C. § 1915(e)(1), the Court
may, at its discretion, order that the Pro Se Office 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). 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 Court to “first determine whether the indigent’s position seems likely to be of substance,"
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Hodge, 802 F.2d at 61, and then, if this threshold is met, to consider “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). “Even where the
claim is not frivolous, counsel is often unwarranted where the indigent’s chances of success are
extremely slim,” and the Court should determine whether the pro se litigant’s “position seems
likely to be of substance,” or shows “some chance of success.” Hodge, 802 F.2d at 60-61.
Plaintiff’s application does not speak to the standard outlined above; rather, he complains
about pandemic-related restrictions on his access to the law library at Sing Sing, dental issues, and
prior failed attempts to retain counsel. (Doc. 113 at 1-2). This action is still in its early stages;
indeed, the Initial Pretrial Conference in this matter is scheduled for tomorrow. (Doc. 112). At this
stage of the proceedings, the Court cannot determine whether Plaintiff’s position seems likely to
be of substance or whether there are particularly complex issues requiring the appointment of pro
bono counsel. The Court is unable also to determine whether Plaintiff is unable to handle this case
without counsel, as Plaintiff has “effectively litigat[ed] this matter thusfar.” Dayer v. Fallon, No.
19-CV-301, 2019 WL 2912111, at *2 (N.D.N.Y. July 8, 2019). While the Court’s conclusion may
well change as the action progresses, the Court does not find any circumstances warranting the
appointment of pro bono counsel at this time. As such, Plaintiff’s application for pro bono counsel
is DENIED without prejudice to renew at a later stage in the proceedings.
The Clerk of the Court is respectfully directed to mail a copy of this Order to Plaintiff.
SO ORDERED:
Dated:

White Plains, New York
April 26, 2021
PHILIP M. HALPERN
United States District Judge

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