Carzoglio v. Abrams et al

Filing 83

ORDER denying without prejudice to renewal 82 Application for the Court to Request Counsel. For the foregoing reasons, Plaintiff's motion for pro bono counsel is denied without prejudice to a renewed application later in the case. The Cler k of the Court is respectfully directed to terminate the motion sequence pending at Doc. 82 and mail a copy of this Order to plaintiff. 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). (Signed by Judge Philip M. Halpern on 8/16/2021) (jca) Transmission to Docket Assistant Clerk for processing.

Case 7:18-cv-04198-PMH Document 83 Filed 08/16/21 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
ANGELO CARZOGLIO,
Plaintiff,
v.
ABRAMS, et al.,
Defendants.
---------------------------------------------------------X

ORDER
18-cv-04198-PMH

PHILIP M. HALPERN, United States District Judge:
Plaintiff has filed a letter requesting “the Court to appoint [c]ounsel.” (Doc. 82) The Court
construes Plaintiff’s letter as a request for the appointment of pro bono counsel and, for the reasons
set forth below, denies the application.
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, 301-10 (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

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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 once previously requested that he be appointed pro bono counsel. (Doc. 49). That
application was denied. (Doc. 50). In denying Plaintiff’s previous request, the Court noted that
“there is no indication that Plaintiff’s position shows a strong chance of success or that the legal
issues in this case are particularly complex.” (Id. at 2). Further, the Court could not conclude at
that juncture that “Plaintiff is unable to handle the case without assistance . . . .” (Id.). Although
Plaintiff has progressed beyond the motion to dismiss stage, the Court cannot determine at this
point whether Plaintiff’s claim is “likely to be of substance.” Hodge, 802 F.2d at 61-62. The Court
similarly finds that the other Hodge factors weigh against granting Plaintiff’s application; indeed,
at this stage of the proceeding, Plaintiff has not shown (1) that he is unable to investigate the crucial
facts or present his case, (2) that cross-examination “will be the major proof presented to the fact
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finder,” (3) that this matter will involve complex legal issues, or (4) why appointment of counsel
would be more likely to lead to a just determination herein. Moreover, Plaintiff has successfully
litigated two motions to dismiss on his own, thus undercutting the notion that representation would
necessarily “lead to a quicker and more just result by sharpening the issues and shaping
examination.” Hodge, 802 F.2d at 61. Plaintiff also notes that, even without an attorney, he has
been able to follow the Court’s directions. (Doc. 82 at 2 (noting that Plaintiff “has followed every
instruction directed on [sic] this matter”)).
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for pro bono counsel is denied without
prejudice to a renewed application later in the case.
The Clerk of the Court is respectfully directed to terminate the motion sequence pending
at Doc. 82 and mail a copy of this Order to plaintiff.
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).
Dated: White Plains, New York
August 16, 2021
____________________________
Philip M. Halpern
United States District Judge

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