Washington v. Tocco

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CHARMEEN DENISE WASHINGTON, Plaintiff, 23-CV-05561 (LTS) -against- ORDER NEUROLOGIEST MR. DR. MICHAEL TOCCO, Defendant.

LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is proceeding pro se and in forma pauperis (“IFP”), filed this complaint on June 28, 2023. On July 7, 2023, Plaintiff filed an Application for the Court to Request Counsel.

By order dated July 27, 2023, the Court: (1) directed Plaintiff to file an amended complaint to address deficiencies in the original complaint; and (2) denied the motion for counsel without prejudice, for the following reasons.

The factors to be considered in ruling on an indigent litigant’s request for counsel include the merits of the case, Plaintiff’s efforts to obtain a lawyer, and Plaintiff’s ability to gather the facts and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which command[s] the most attention.” Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff’s motion for counsel is denied without prejudice to renewal at a later date. (ECF 6.)

Plaintiff has not filed an amended complaint, but on August 29, 2023, Plaintiff filed a second motion for counsel. The Court denies the second motion for counsel for the same reasons set forth in the July 27, 2023 order to amend. In short, it is not clear that Plaintiff can state a viable claim falling within the court’s subject matter jurisdiction.

The Court grants Plaintiff an extension of time to amend her complaint. Plaintiff must submit an amended complaint within 60 days of the date of this order. Within that time, Plaintiff should be able to provide the Court with whatever facts are available to show that she can state a claim falling within the court’s subject matter jurisdiction. The Court directs Plaintiff’s attention to the July 27, 2023 order to amend, which sets forth the jurisdictional requirements for a civil action filed in federal court.

Plaintiff may consider contacting the New York Legal Assistance Group’s (“NYLAG”) Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. The clinic is run by a private organization; it is not part of, or run by, the court. It cannot accept filings on behalf of the court, which must still be made by any pro se party through the Pro Se Intake Unit. A copy of the flyer with details of the clinic is attached to this order.

CONCLUSION The motion for counsel is denied without prejudice, and the Clerk of Court is directed to terminate it. (ECF 7.)

The Court grants Plaintiff an extension of time to file an amended complaint. Plaintiff must submit an amended complaint, as set forth in the July 27, 2023 order, to this Court’s Pro Se Intake Unit within 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 23-CV-05561 (LTS). If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed without prejudice for lack of subject matter jurisdiction.

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.

Dated: September 5, 2023 New York, New York /s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge SD lee Pe ew Since 1990, NYLAG has provided free civil legal services New York ME Legal Assistance Group to New Yorkers who cannot afford private attorneys.

Free Legal Assistance for Self-Represented Civil Litigants in District Court for the Southern District Of New Yor| NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York is a fre clinic staffed by attorneys, law students and paralegals to assist those who are themselves or planning to represent themselves in civil lawsuits in the outhern District of New York. The clinic does not provide full representation. The clinic, is not part of or run by the court, assists litigants with federal civil cases including involving civil rights, employment discrimination, labor law, social security benefit: and tax.

Contact the Clinic: (212) 659-6190 or complete our online intake form (found here: A staff member will contact you within a few days.

looking for assistance can also contact the clinic at the kiosk located across the hall the pro se clinic office in the courthouse. this time, the clinic offers remote consultations only. Requests for in- appointments will be reviewed on a case-to-case basis. and Hours: Marshall United States Courthouse Room LL22 Foley Square New York, NY 10007 (212) 659 6190 Open weekdays a.m. — 4 p.m.

Closed on federal and court holidays ii □□□□ □