Barnett v. Westchester County et al

Filing 53

ORDER: Accordingly, this action is still in its early stages. 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. Therefore, because th e Court does not find any circumstances which warrant the appointment of pro bono counsel at this time, Plaintiffs application is denied without prejudice to renewal at a later stage. With respect to Plaintiffs filing of his Amended Complaint afte r the deadline imposed by the Court, the Court is cognizant of the difficulties Plaintiff may have faced in attempting to adhere to that deadline in light of the ongoing global pandemic and the many restrictions it has necessitated. Therefore, th e Court accepts the Amended Complaint nunc pro tune and directs Defendants to file their answers or otherwise respond on or before August 21, 2020. The Clerk of the Court is respectfully directed to mail a copy of this Order to Plaintiff and show proof of service on the docket. (Aramark Food Services answer due 8/21/2020; Charles Butler answer due 8/21/2020; Kevin M. Cheverko answer due 8/21/2020; Coffey Kohli answer due 8/21/2020; Manuel Mendoza answer due 8/21/2020; Westchester County answer due 8/21/2020.) (Signed by Judge Nelson Stephen Roman on 7/14/2020) (rro)

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delays at Cape Vincent Correctional Facility, where Plaintiff is currently incarcerated, and
requesting that the Court assign him pro bono legal counsel. (ECF No. 52.)
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. 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
“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). “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.
At this early stage in the proceedings, there is no indication that Plaintiff’s position is likely
to be of substance or that there are particularly complex issues requiring the appointment of pro

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