Tripathy v. McClowski et al

Filing 281

MEMO ENDORSED ORDER granting 280 Motion to Appoint Counsel. ENDORSEMENT: Having considered the factors set forth in Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986), the Court grants Plaintiff's motion for appointment of counsel t o the extent that the Court will request volunteer counsel. 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. Nevertheless, this litigation will progress at a normal pace. If an attorney decides to take the case, the attorney will contact Plaintiff directly. There is no guarantee, however, that a vol unteer attorney will take the case, and in the meantime Plaintiff should continue to represent himself. Of course, if an attorney offers to take the case, it is entirely Plaintiff's decision whether to retain that attorney or not. The claims in this case arise from a state prisoner's allegations that he was denied a diet compliant with his Hindi religion. As set forth in the Court's September 20, 2024 bench ruling, the case is moving forward on Plaintiff's RLUIPA and First A mendment Free Exercise claims concerning the failure to offer him a diet compliant option prior to 12/6/21 as to Defendants Schneider, Dolan, Massey-Harris, Dash, Frost, Burnett, Fernandez, Olney, and Brandow and his First Amendment Free Exercise claim concerning proximity to inmates consuming beef in the mess hall as to Defendants Frost, Burnett, Dash, Schneider, Latona, Moffit, Fernandez, Olney, and Brandow. SO ORDERED. (Signed by Judge Cathy Seibel on 3/11/2025) (mml)

#21-cv-06584-CS

To: SDNY; US Courthouse, White Plains, NY 10601;
HON. Cathy Seibel, US District Judge;
Cc: Office of the New York State Attorney General; New York, NY 10005;
Neil Shevlin, Assistant AG (Attorney for Defendants);
From: Sanjay Tripathy, (ProSe Petitioner/Plaintiff), Morrisville, NC 27560;
Date: Monday, March 10th, 2025;
Subject: Case #21-cv-06584-CS (Tripathy v. McClowski et. al.); - MOTION
FOR APPOINTMENT OF PRO BONO COUNSEL FOR TRIAL

To the Honorable Judge Cathy Seibel:
Plaintiff, [Sanjay Tripathy], appearing pro se, respectfully moves this Court
for an order appointing pro bono counsel to assist him during the trial
scheduled to commence on April 28, 2025.
MEMORANDUM OF LAW
I. INTRODUCTION
Plaintiff, appearing pro se, requests the Court to exercise its discretion and
appoint pro bono counsel to assist him during the upcoming jury trial.
Plaintiff is facing a complex trial against approximately fifteen (15)
Defendants, all represented by the New York State Attorney General’s
Office, which possesses vast resources and expertise. Plaintiff has diligently
represented himself throughout the pretrial proceedings but now faces the
daunting task of conducting a trial against well-resourced adversaries.
II. FACTUAL BACKGROUND
_____________________________________________________________________
Sanjay Tripathy (ProSe Petitioner/Plaintiff)
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#21-cv-06584-CS

Plaintiff’s claims arise from violation of RLUIPA and First Amendment - Free
Exercise clause, against The State of New York/DOCCS and individual
Defendants. The trial is scheduled to begin April 28, 2025. Plaintiff has been
unable to secure private counsel due to severe financial constraints. Since
July 2016, Plaintiff has been unemployed, and his savings have been
depleted due to a wrongful conviction and subsequent incarceration. He is
now reliant on family support.
Plaintiff recognizes that the appointment of pro bono counsel is within the
Court’s discretion. However, the complexity of this case, the disparity in
resources between the parties, and the fundamental importance of ensuring
a fair trial necessitate the Court’s intervention.
III. ARGUMENT
A. The Court Has Discretion to Appoint Pro Bono Counsel Under 28
U.S.C. § 1915(e)(1).
28 U.S.C. § 1915(e)(1) authorizes federal courts to “request an attorney to
represent any person unable to afford counsel.” While there is no absolute
right to counsel in civil cases, courts have recognized the importance of
appointing counsel in appropriate circumstances.
B. Factors Favoring Appointment of Pro Bono Counsel.
Courts in the Second Circuit consider several factors in determining whether
to appoint pro bono counsel, including:
1.? Likelihood of Success on the Merits: While Plaintiff believes he has
a strong case, the Court need not determine the ultimate outcome.

_____________________________________________________________________
Sanjay Tripathy (ProSe Petitioner/Plaintiff)
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2.? Complexity of the Legal Issues: This case involves complex legal
and factual issues, including complex specific legal issues, large
numbers of Defendants and witness testimony, with large documents,
constitutional claims, qualified immunity.
3.? Ability of the Pro Se Litigant to Represent Himself: Plaintiff, though
competent, lacks the experience and expertise necessary to
effectively conduct a jury trial against experienced counsel.
4.? Ability of the Pro Se Litigant to Obtain Counsel: Plaintiff has made
diligent efforts to obtain counsel but has been unable to do so due to
financial hardship.
5.? Whether the Presence of Counsel Would Aid in Efficient
Presentation of the Case: Counsel would significantly aid in jury
selection, presenting evidence, conducting cross-examinations, and
ensuring a fair trial.
?? Case Law:
?? Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)
(setting forth factors for appointing counsel).
?? Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 86
F.2d 715 (2d Cir. 1989) (recognizing the Court's inherent power
to appoint counsel).
?? In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984) (discussing
the court’s discretionary power).
C. The Disparity of Resources and Complexity of Trial.
Plaintiff faces a significant disadvantage against the well-funded and
experienced attorneys from the New York State Attorney General’s Office.
The trial will involve complex legal arguments, witness examinations, and
_____________________________________________________________________
Sanjay Tripathy (ProSe Petitioner/Plaintiff)
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#21-cv-06584-CS

evidentiary procedures. Plaintiff’s lack of legal training and experience will
severely hinder his ability to effectively present his case.
D. Precedent in Similar Cases.
Plaintiff respectfully brings to the Court's attention that in one of Petitioner’s
Case 19-cv-06614-FPG in the Western District of New York, a case
involving similar issues (laundry policy and proximity to Beef) regarding
DOCCS policies, the Court appointed pro bono counsel to assist with
discovery. This demonstrates the recognition of the need for legal
assistance in cases involving DOCCS and the substantial resources of the
State.
E. Specific Request for Trial Assistance.
Plaintiff requests that the appointed counsel assist him specifically with:
?? Jury selection.
?? Direct examination of Plaintiff.
?? Cross-examination of Defendants and other witnesses.
?? Presenting legal arguments and objections during trial.
Plaintiff will complete all necessary pretrial requirements pro se.
IV. CONCLUSION
Plaintiff respectfully requests that the Court exercise its discretion and
appoint pro bono counsel to assist him during the trial. The appointment of
counsel is essential to ensure a fair trial and the effective administration of
justice.

_____________________________________________________________________
Sanjay Tripathy (ProSe Petitioner/Plaintiff)
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#21-cv-06584-CS

WHEREFORE, Plaintiff respectfully requests that the Court grant this
motion and appoint pro bono counsel to assist him during the trial.
Respectfully Submitted,
/s/ Sanjay Tripathy
Sanjay Tripathy
ProSe Petitioner/Plaintiff
An innocent man, exonerated after 1651 days in illegal captivity, due to
unconstitutional acts, religious persecutions perpetrated by The State of
New York, and State Actors acting under the Color of Law;
Having considered the factors set forth in Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986),
the Court grants Plaintiff's motion for appointment of counsel to the extent that the Court will request
volunteer counsel. 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. Nevertheless, this litigation will progress at a
normal pace. If an attorney decides to take the case, the attorney will contact Plaintiff directly. There is
no guarantee, however, that a volunteer attorney will take the case, and in the meantime Plaintiff
should continue to represent himself. Of course, if an attorney offers to take the case, it is entirely
Plaintiff’s decision whether to retain that attorney or not.
The claims in this case arise from a state prisoner's allegations that he was denied a diet compliant
with his Hindi religion. As set forth in the Court's September 20, 2024 bench ruling, the case is moving
forward on Plaintiff's RLUIPA and First Amendment Free Exercise claims concerning the failure to
offer him a diet compliant option prior to 12/6/21 as to Defendants Schneider, Dolan, Massey-Harris,
Dash, Frost, Burnett, Fernandez, Olney, and Brandow and his First Amendment Free Exercise claim
concerning proximity to inmates consuming beef in the mess hall as to Defendants Frost, Burnett,
Dash, Schneider, Latona, Moffit, Fernandez, Olney, and Brandow.

3/11/25

_____________________________________________________________________
Sanjay Tripathy (ProSe Petitioner/Plaintiff)
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#21-cv-06584-CS

CERTIFICATE OF SERVICE
I, Sanjay Tripathy, hereby certify that on Monday, March 10th, 2025, I
completed the following service:
1.? I,

electronically

uploaded Case #21-cv-06584-CS (Tripathy v.

McClowski et. al.); - MOTION FOR APPOINTMENT OF PRO BONO
COUNSEL FOR TRIAL - to the Clerk of the United States District
Court for the Southern District of New York (SNDY) using the Case
Management/Electronic Case Files (CM/ECF) system.
2.? Subsequently, through the CM/ECF system, an email link was
generated and provided to all participants involved in this case,
including Defense Counsel Neil Shevlin, Assistant Attorney General,
New York State Office of the Attorney General.
This electronic service was accomplished in accordance with the
established procedures for electronic filing and service within the Southern
District of New York.
Respectfully Submitted,
/s/ Sanjay Tripathy
Sanjay Tripathy
ProSe Petitioner/Plaintiff
An innocent man, exonerated after 1651 days in illegal captivity, due to
unconstitutional acts, religious persecutions perpetrated by The State of
New York, and State Actors acting under the Color of Law;

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Sanjay Tripathy (ProSe Petitioner/Plaintiff)
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