McKinney v. Warwick New York Village Police Department

DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC #: DATE FILED: _ 4/24/2024 IVAN G. McKINNEY, —————— Plaintiff, 23-CV-10405 (NSR) -against- ORDER WARWICK NEW YORK VILLAGE POLICE DEPT., et al., Defendant.

NELSON S. ROMAN, United States District Judge: The Court is in receipt of the Application to Request Pro Bono Counsel from pro se Plaintiff van G. McKinney, dated April 17, 2024, requesting the appointment of pro bono counsel. (ECF No. 11.) For the reasons below, Plaintiff’s request is DENIED.

Unlike in criminal proceedings, the Court does not have the power to obligate attorneys to represent indigent pro se litigants in civil cases. See Mallard v. U.S. Dist. Court for the S. Dist. of Towa, 490 U.S. 296, 308-09 (1989). Instead, pursuant to 28 U.S.C. § 1915(e)(1), the Court may, at its discretion, order that the Pro Se Office request an attorney to represent an indigent litigant by placing the matter on a list circulated to attorneys who are members of the Court’s pro bono panel. See Palacio v. City of New York, 489 F. Supp. 2d 335, 344 (S.D.N.Y. 2007).

The Second Circuit set forth the standards governing the appointment of counsel in pro se cases in Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997), Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989), and Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986).

These cases direct the district courts to “first determine whether the indigent’s position seems likely to be of substance,” Hodge, 802 F.2d at 61, and then, if this threshold is met, to consider “secondary criteria,” including the pro se litigant’s “ability to obtain representation independently, and his ability to handle the case without assistance in the light of the required factual investigation, the complexity of the legal issues, and the need for expertly conducted cross-examination to test veracity.” Cooper, 877 F.2d at 172; accord Hendricks, 114 F.3d at 392 (quoting Hodge, 802 F.2d at 61-62). “Even where the claim is not frivolous, counsel is often unwarranted where the indigent’s chances of success are extremely slim,” and the Court should determine whether the pro se litigant’s “position seems likely to be of substance,” or shows “some chance of success.”

Hodge, 802 F.2d at 60-61.

With that in mind, Plaintiffs instant request for pro bono counsel cannot be granted at such an early stage in the litigation. The docket sheet indicates that this case was filed less than one year ago. The named Defendant has been served with the summons and Complaint but has not yet made an appearance in this matter. Thus, at this early stage in the proceedings, with no response submitted by any of the Defendants, the Court is unable to determine whether Plaintiffs position shows a strong chance of success or that the legal issues in this case are particularly complex.

Additionally, the Court cannot conclude at this time that Plaintiff is unable to handle the case without assistance, although this conclusion may change as the action progresses. For present purposes, the Court has attached for Plaintiff's review a flyer with information on the New York Legal Assistance Group’s pro se clinic for the Southern District of New York.

Therefore, being unable to determine whether any circumstances warrant the appointment of pro bono counsel at this early stage, the Court DENIES Plaintiff's motion without prejudice with leave to renew at a later stage in the proceedings. The Clerk of Court is directed to terminate the motion at ECF No. 11, mail a copy of this Order to Plaintiff at the address listed on ECF, and show service on the docket.

Dated: April 24, 2024 SO ORDERED: White Plains, New York -NELSONS.ROMAN United States District Judge Y | A G Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys.

New York ME Legal Assistance Group Free Legal Assistance for Self-Represented Incarcerated Civil Litigants in Federal District Court e NYLAG Legal Clinic for Pro Se Litigants in The Clinic Can: Southern District of New York is a free legal staffed by attorneys, law students, and « Assist with amending complaints and respondin; to assist those who are representing motions to dismiss; or planning to represent themselves, = Represent litigants for settlement purposes and, incarcerated litigants, in civil lawsuits in limited circumstances, for depositions; Southern District of New York federal court, = Assist with written discovery; habeas cases. The clinic is not part of or = Recruit pro bono counsel for depositions and tris by the court. and en if a litigant has consulted with Clinic staff, = Assist with oppositions to summary judgment. they retain other counsel and that counsel . .

Clinic staff cannot assist with habeas cases « a notice of appearance, they remain : criminal matters. are responsible for doing is necessary in connection with the case; NyT_AG may also be unable to assist if it determines still oe co a a ' its professional legal judgement, that (i) you have petay bg Keo mas met ay Dame refused to cooperate with the Clinic’s counsel or foll Moynihan Courthouse, 40 Foley Square, way sass . □ : the Clinic’s advice; (ii) any assistance would be York, New York, or by following the court’s . □□ i A J □ unreasonably difficult for NYLAG to carry out; or (ii for filing via email as a pro se litigant. . . . your case is or will become frivolous, unreasonable, groundless, or without merit. the Clinic: the clinic and request a copy of our retainer, please call (212) 659-6190 and leave a message or to us at the following address: NYLAG Legal Clinic for Pro Se Litigants Thurgood Marshall Federal Courthouse Room LL22 Foley Square New York, NY 10007 mail a signed retainer back to the clinic at the above address. Once the paperwork is received, clinic will contact you. It may take up to two weeks.

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