Smolen v. Nevins et al

Filing 119

ORDER GRANTING REQUEST FOR PRO BONO COUNSEL granting 115 Application for the Court to Request Counsel. For the foregoing reasons, Plaintiff's Application for the Court to Request Counsel is granted. The Court certifies under 28 U.S.C.  7; 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 the Court is respectfully directed to terminate the motion sequence pending at Doc. 115. SO ORDERED.. (Signed by Judge Philip M. Halpern on 10/8/2021) (jca) Modified on 10/8/2021 (jca).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SAMUEL J. SMOLEN, JR.,
Plaintiff,

17-CV-07494

-against-

ORDER GRANTING REQUEST FOR
PRO BONO COUNSEL

NEVINS, et al.,
Defendants.
PHILIP M. HALPERN, United States District Judge:

Plaintiff has filed an Application for the Court to Request Counsel. For the following
reasons, Plaintiff’s application is granted
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 grant an indigent litigant’s request for representation. Id. Even if a court does believe
that a litigant should have a 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 grant
applications for 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 set forth the factors a court should consider in deciding
whether to grant a litigant’s request for counsel. 802 F.2d at 61-62. Of course, the litigant must
first demonstrate that he or she is indigent, see Terminate Control Corp. v. Horowitz, 28 F.3d 1335,
1341 (2d Cir. 1994), 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 brightline 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
Order dated November 3, 2017, ECF No. 4.) When Plaintiff filed his Application for the Court to
Request Counsel, Plaintiff affirmed that his financial status had not changed. (See Application for
the Court to Request Counsel, ECF No. 115.) Plaintiff therefore qualifies as indigent.
In the complaint, Plaintiff asserts a claim under 42 U.S.C. § 1983, alleging that he has been
confined in involuntary protective custody for an extended period of time without meaningful
review in violation of his due process rights. The Court finds that Plaintiff’s claim is “likely to be
of substance.” Hodge, 802 F.2d 61-62. Plaintiff has advanced this case past a motion to dismiss,

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and it is now ready for trial. At trial, Plaintiff will need to cross-examine witnesses and otherwise
present evidence to a jury. Although Plaintiff’s case is not especially complex, a lawyer will be
better positioned than Plaintiff, who lacks a legal education and is currently incarcerated, to prepare
for and present this case at trial. Therefore, the Court concludes that, in this case, representation
would “lead to a quicker and more just result by sharpening the issues and shaping examination.”
Hodge, 802 F.2d at 61.
CONCLUSION
For the foregoing reasons, Plaintiff’s Application for the Court to Request Counsel is
granted.
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).
The Clerk of the Court is respectfully directed to terminate the motion sequence pending
at Doc. 115.
SO ORDERED.
Dated:

October 8, 2021
White Plains, New York
Hon. Philip M. Halpern
United States District Court Judge

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