Stoytchev v. City of Yonkers et al

Filing 31

ORDER: Accordingly, Plaintiff's application for appointment of pro bono counsel is DENIED WITHOUT PREJUDICE. SO ORDERED. (Signed by Magistrate Judge Andrew E. Krause on 2/5/2024) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GEORGE STOYTCHEV,
Plaintiff,
-against-

ORDER
22-cv-8877 (AEK)

CITY OF YONKERS, et al.,
Defendants.
ANDREW E. KRAUSE, United States Magistrate Judge:
On November 28, 2023, the Court conducted a settlement conference at which Plaintiff
appeared pro se, but no settlement was reached. On December 14, 2023, Defendants’ counsel
submitted a letter indicating that the case was trial-ready. See ECF No. 24. The Court
subsequently directed Plaintiff to file a letter to, among other things, “indicate whether Plaintiff
requests that the Court attempt to locate pro bono counsel to represent him for purposes of trial.”
See ECF No. 25. On January 19, 2024, Plaintiff filed a letter in which he requested that the
Court help him to obtain pro bono counsel. ECF No. 28. For the following reasons, Plaintiff’s
application is DENIED WITHOUT PREJUDICE. As explained below, Plaintiff may, under
appropriate circumstances, renew his application at a later time.
To justify a request for pro bono counsel under 28 U.S.C. § 1915(e)(1), a litigant must
first demonstrate that he or she is unable to afford counsel by, for example, successfully applying
for leave to proceed in forma pauperis (“IFP”). See Vickers v. Dep’t of Veteran’s Affairs, No. 22cv-1781 (DEH), 2023 WL 7414674, at *1 (S.D.N.Y. Oct. 30, 2023) (attached); Terminate
Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). Plaintiff has not taken this
necessary step in this matter. If Plaintiff chooses to do so, he may submit an application to

proceed IFP, using the form available at https://www.nysd.uscourts.gov/sites/default/files/201806/IFP-application.pdf. Such application must be filed by February 16, 2024.
If Plaintiff’s IFP application is approved, the Court will then consider Plaintiff’s
application for appointment of pro bono counsel without the need to re-file the request. At that
point, that Court would then evaluate the factors set forth by the Second Circuit in Hodge v.
Police Officers, 802 F.2d 58 (2d Cir. 1986). These include whether the plaintiff’s claim “seems
likely to be of substance”; the plaintiff’s ability and efforts to obtain counsel; and the plaintiff’s
ability to handle the case without the assistance of counsel. Id. at 61-62; see also Cooper v. A.
Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989).
Accordingly, Plaintiff’s application for appointment of pro bono counsel is DENIED
WITHOUT PREJUDICE.
Dated: February 5, 2024
White Plains, New York

SO ORDERED:

____________________________
ANDREW E. KRAUSE
United States Magistrate Judge

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Vickers v. Department of Veteran's Affairs, Slip Copy (2023)
2023 WL 7414674

2023 WL 7414674
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Asiya VICKERS, Plaintiff,
v.
DEPARTMENT OF VETERAN'S AFFAIRS, Defendant.
22-CV-1781 (DEH)
|
Signed October 30, 2023
Attorneys and Law Firms
Asiya Vickers, New York, NY, Pro Se.

bono counsel sparingly, and concerning public benefit, to
preserve the “precious commodity of volunteer-lawyer time.”
Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir.
1989).
In Hodge, the Court of Appeals for the Second Circuit 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. The litigant must first prove 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:

Amanda M. Lee, DOJ-USAO, New York, NY, for Defendant.

ORDER
DALE E. HO, United States District Judge:
*1 Plaintiff has filed an Application for the Court to
Request Pro Bono Counsel for Limited Representation for
Settlement Negotiations and Depositions. Dkt. No. 54. For
the following reasons, Plaintiff's application is denied without
prejudice at this time. As explained below, Plaintiff may,
under appropriate circumstances, renew her application at a
later time.

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).

LEGAL STANDARD
The in forma pauperis (IFP) 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 believes
that a litigant should have a free lawyer, a court has no
authority to “appoint” counsel under the in forma pauperis
statute. Instead, a court 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

DISCUSSION
The Court is sympathetic to the Plaintiff's difficulty in
obtaining counsel. But Plaintiff has not filed, nor been
granted, a Request to Proceed in Forma Pauperis (IFP). Cf.
Hodge, 802 F.2d at 61. Therefore, Plaintiff does not qualify
as indigent. To justify a request for pro bono counsel under 28
U.S.C. § 1915(e)(1), the litigant must first demonstrate that he
or she is unable to afford counsel by, for example, successfully
applying for leave to proceed IFP. Travis v. Bank of America,
N.A., 22-CV-2025151, 2023 WL 2025151, at *1 (S.D.N.Y.
Jan. 19, 2023); see Terminate Control Corp. v. Horowitz, 28
F.3d 1335, 1341 (2d Cir. 1994) (the district court “must first
ascertain whether the litigant is able to afford or otherwise
obtain counsel”).

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Vickers v. Department of Veteran's Affairs, Slip Copy (2023)
2023 WL 7414674

*2 If appropriate, the Plaintiff may apply to proceed in
Forma Pauperis (IFP), the form for which is available at:
https://www.nysd.uscourts.gov/node/838. If Plaintiff chooses
to do so, and if her application to proceed IFP is granted,
Plaintiff may then refile an Application for the Court to
Request Pro Bono Counsel for Limited Representation.

CONCLUSION
For the foregoing reasons, Plaintiff's Application for the Court
to Request Pro Bono Counsel for Limited Representation for

End of Document

Settlement Negotiations and Depositions is denied without
prejudice to its renewal.
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).

SO ORDERED.
All Citations
Slip Copy, 2023 WL 7414674
© 2024 Thomson Reuters. No claim to original U.S. Government Works.

© 2024 Thomson Reuters. No claim to original U.S. Government Works.

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