Richardson v. New York State Department of Corrections Community Service et al

Filing 58

AMENDED ORDER GRANTING PRO BONO COUNSEL: For the foregoing reasons, the Clerk of Court is directed to attempt to locate pro bono counsel to represent Plaintiff for the limited purposes described above. The Court advises Plaintiff that there are no funds to retain counsel in civil cases and the Court relies on volunteers. Due to a scarcity of volunteer attorneys, a lengthy period of time may pass before counsel volunteers to represent Plaintiff. If an attorney volunteers, the attorney will contact Plaintiff directly. There is no guarantee, however, that a volunteer attorney will decide to take the case, and plaintiff should be prepared to proceed with the case without an attorney. The Court certifies under 28 U.S.C. § 191 5(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 shall mail a copy of this Order to Plaintiff at the address on the docket. SO ORDERED. (Signed by Judge Philip M. Halpern on 8/25/2020) (ks) Transmission to Docket Assistant Clerk for processing.

Case 7:18-cv-05345-PMH Document 58 Filed 08/25/20 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FRED W. RICHARDSON,
Plaintiff(s),
-against-

18-CV-5345 (PMH)
AMENDED ORDER GRANTING
PRO BONO COUNSEL

EVITA HINDS,
Defendant(s).
PHILIP M. HALPERN, United States District Judge:

The Court directs that the Clerk of Court seek pro bono counsel to enter a limited
appearance for the purpose of conducting discovery and opposing Defendant’s motion for
summary judgment, if Defendant so moves, in the above-captioned action. Counsel will file a
Notice of Limited Appearance as Pro Bono Counsel.
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 seek pro bono representation for a civil litigant. Id. Even if a court does
believe that a litigant should have a free 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
request the services of pro bono counsel sparingly, and with reference to public benefit, in order

Case 7:18-cv-05345-PMH Document 58 Filed 08/25/20 Page 2 of 4

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 Court of Appeals set forth the factors a court should
consider in deciding whether to grant a litigant’s request for pro bono counsel. 802 F.2d at 61-62.
Of course, the litigant must first demonstrate that he or she is indigent, 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 June 22, 2018, ECF No. 4.) Plaintiff therefore qualifies as indigent.
In the complaint, Plaintiff asserts a claim under 42 U.S.C. § 1983, alleging that
Defendant C.O. Hinds sexually assaulted him. On April 5, 2019, Judge Briccetti found that
Plaintiff’s claim is “likely to be of substance” and that the other Hodge factors weighed in favor
of granting Plaintiff’s application requesting pro bono counsel. (See ECF No. 25). On May 1,
2

Case 7:18-cv-05345-PMH Document 58 Filed 08/25/20 Page 3 of 4

2019, pro bono counsel entered appearances on behalf of Plaintiff. (Docs. 28, 29). This case was
transferred to me on March 17, 2020.
Subsequently, and after completing certain discovery, Plaintiff’s pro bono counsel filed a
request to withdraw their representation citing a conflict of interest. (Doc. 55 at 1). Pro bono
counsel “renew[ed] Mr. Richardson’s request for this Court’s assistance in obtaining pro bono
counsel” and stated that “although our representation has been limited in scope as set forth in the
April 5 Order, we believe in the merits of Mr. Richardson’s claim and strongly believe that the
appearance of pro bono counsel for Mr. Richardson in this action would serve the interests of
justice.” (Id. at 2). The Court granted pro bono counsel’s request to withdraw their representation

on July 8, 2020. (Doc. 56).
The Court held a telephonic status conference on August 25, 2020 during which pro se
Plaintiff and counsel for Defendant appeared. During the conference the parties informed the
Court that certain limited discovery remains outstanding, including Plaintiff’s deposition and
possibly the review and production of certain medical records. Additionally, counsel for
Defendant indicated that summary judgment motion practice after the close of discovery is
possible.
Given the stage of the proceedings, and Judge Briccetti’s previous finding that Plaintiff’s
claim has merit, the Court requests that counsel appear for the limited purpose of defending
Plaintiff’s deposition, completing document discovery, and opposing Defendant’s motion for
summary judgment, if such a motion is ultimately filed. In addition, pro bono counsel may
engage in settlement discussions.
Under the Court’s Standing Order regarding the Creation and Administration of the Pro
Bono Fund (16-MC-0078), pro bono counsel may apply to the Court for reimbursement of
certain out-of-pocket expenses spent in furtherance of Plaintiff’s case. The Pro Bono Fund is
3

Case 7:18-cv-05345-PMH Document 58 Filed 08/25/20 Page 4 of 4

especially intended for attorneys for whom pro bono service is a financial hardship. See
http://www.nysd.circ2.dcn/docs/prose/pro_bono_fund_order.pdf.
Pro bono counsel will not be obligated for any aspect of Plaintiff’s representation beyond
the matters described in this order. Upon the filing by pro bono counsel of a Notice of
Completion, the representation by pro bono counsel of Plaintiff in this matter will terminate, and
pro bono counsel will have no further obligations or responsibilities to Plaintiff or to the Court in
this matter.
CONCLUSION
For the foregoing reasons, the Clerk of Court is directed to attempt to locate pro bono
counsel to represent Plaintiff for the limited purposes described above. The Court advises
Plaintiff that there are no funds to retain counsel in civil cases and the Court relies on volunteers.
Due to a scarcity of volunteer attorneys, a lengthy period of time may pass before counsel
volunteers to represent Plaintiff. If an attorney volunteers, the attorney will contact Plaintiff
directly. There is no guarantee, however, that a volunteer attorney will decide to take the case,
and plaintiff should be prepared to proceed with the case without an attorney.
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 shall mail a copy of this Order to Plaintiff at the address on the docket.
SO ORDERED.
Dated:

August 25, 2020
New York, New York
PHILIP M. HALPERN
United States District Judge

4