Smith v. New York State Department of Correctional Services et al

Filing 127

ORDER denying without prejudice to renew 126 Application for the Court to Request Counsel. Accordingly, Plaintiff's motion is DENIED, without prejudice to renew at a later date. The Clerk of the Court is kindly directed to terminate the motion at ECF No. 126, mail a copy of this Order to pro se Plaintiff, and show proof of service on the docket. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 8/31/2021) (rj) Transmission to Docket Assistant Clerk for processing.

Case 7:15-cv-03455-NSR Document 127 Filed 08/31/21 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WILLIAM D. SMITH,

08/31/2021
Plaintiff,

-againstSUPERINTENDENT ROBERT CUNNINGHAM,
et al.,

15-cv-3455 (NSR)
ORDER

Defendants.
NELSON S. ROMÁN, United States District Judge
On July 29, 2021, Plaintiff filed an application for an appointment of pro bono counsel.
(ECF Nos. 123 & 124.) The Court denied this request on July 30, 2021. (ECF NO. 125.) On
August 26, 2021, Plaintiff renewed his request for pro bono counsel. (ECF No. 126.)
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 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. Palacio v. City of New York, 489 F. Supp. 2d 335, 344 (S.D.N.Y. 2007).
The Second Circuit has 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

Case 7:15-cv-03455-NSR Document 127 Filed 08/31/21 Page 2 of 2

“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. “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.
As discussed in this Court’s July 30 Order (ECF No. 125), nothing has materially changed
regarding the substance or chances of success of this action since Plaintiff’s previous requests for
pro bono counsel.

There continue to be no exceptional circumstances which warrant the

appointment at this time. Accordingly, Plaintiff’s motion is DENIED, without prejudice to renew
at a later date.
The Clerk of the Court is kindly directed to terminate the motion at ECF No. 126, mail a
copy of this Order to pro se Plaintiff, and show proof of service on the docket.
Dated:

August 31, 2021
White Plains, New York

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

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