Sutton v. County of Westchester Jail Department of Corrections

Filing 68

ORDER DENYING REQUEST FOR PRO BONO COUNSEL denying 67 Motion to Appoint Counsel. The Court is in receipt of pro se Plaintiff's third request for the appointment of pro bono counsel. (Docs. 66, 67). For the following reasons, Plaintiff& #039;s application is denied. As further set forth in this Order. For the foregoing reasons, Plaintiff's Application for the Court to Request Counsel is denied. Denial of Plaintiff's request is without prejudice to Plaintiff's renewed application later in the case. 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. Unit ed States, 369 U.S. 438, 444-45 (1962). Counsel for Defendants is instructed to deliver a copy of this Order to Plaintiff. The Clerk is instructed to terminate the motion. (Doc. 67). SO ORDERED.. (Signed by Judge Philip M. Halpern on 5/22/2020) (ks)

Case 7:18-cv-01042-PMH Document 68 Filed 05/22/20 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PHILIP B. SUTTON,
Plaintiff,
-againstCOUNTY OF WESTCHESTER JAIL
DEPARTMENT OF CORRECTIONS, et al.,

ORDER DENYING REQUEST FOR
PRO BONO COUNSEL
18-CV-01042 (PMH)

Defendants.
PHILIP M. HALPERN, United States District Judge:
The Court is in receipt of pro se Plaintiff’s third request for the appointment of pro bono
counsel. (Docs. 66, 67). For the following reasons, Plaintiff’s application is denied.
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. Court for the S.
Dist. of Iowa, 490 U.S. 296, 301–310 (1989). Instead, pursuant to 28 U.S.C. § 1915(e)(l), 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
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 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

Case 7:18-cv-01042-PMH Document 68 Filed 05/22/20 Page 2 of 3

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.
In his instant application, Plaintiff repeats the same information raised in his prior
application made to Judge Roman. 1 (Docs. 52, 53). Plaintiff notes that he lacks legal knowledge,
that he has had learning disabilities and mental health problems since he was a child, and that it is
difficult for him to handle his case. However, and Judge Roman noted in his Order denying
Plaintiff’s second request for pro bono counsel (Doc. 65), this action is still in its early stages. At
this early stage in the proceedings, there is no indication that Plaintiff’s position seems likely to be
of substance or that there are particularly complex issues requiring the appointment of pro bono
counsel. The Court is also unable to determine that Plaintiff is unable to handle this case without
assistance, although this conclusion may change as the action continues. The Court notes that there
have been no developments in this case since Judge’s Roman’s Order denying Plaintiff’s second
request for pro bono counsel, except for the reassignment of this matter to me. Therefore, because
the Court does not find any circumstances which warrant the appointment of pro bono counsel at
this time, Plaintiffs application must be DENIED without prejudice to renew it at a later stage in
the proceedings.
For the foregoing reasons, Plaintiff’s Application for the Court to Request Counsel is
denied. Denial of Plaintiff's request is without prejudice to Plaintiff's renewed application later in
the case. 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).
Counsel for Defendants is instructed to deliver a copy of this Order to Plaintiff. The Clerk

1

This case was transferred to me on April 3, 2020.

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Case 7:18-cv-01042-PMH Document 68 Filed 05/22/20 Page 3 of 3

is instructed to terminate the motion. (Doc. 67).
SO ORDERED.
Dated:

New York, New York
May 22, 2020

Philip M. Halpern
United States District Judge

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