DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 6/15/2023 _
ERIC CARATTINI, Plaintiff, 21-cv-9373 (NSR) -against- ORDER CHRISTOPHER BEHUN, Defendant.
NELSON S. ROMAN, United States District Judge Plaintiff Eric Cesar Carattini, who is currently incarcerated and is appearing pro se, brings this action against Christopher Behun, a Senior Investigator with the New York State Police Drug Enforcement Task Force. The Court construes Plaintiff's complaint as asserting claims under 42 U.S.C. § 1983 and state law. Defendant filed a motion to dismiss the original Complaint on October 28, 2022 (ECF No. 25), which Plaintiff did not oppose. By letter dated May 30, 2023, Plaintiff informed the Court that he planned to file (1) an opposition to Defendant’s motion to dismiss, (2) a motion to appoint counsel, (3) a motion to amend the Complaint, and (4) an Amended Complaint. (ECF No. 30.) In light of Plaintiffs letter, the Court denied without prejudice Defendant’s motion to dismiss and granted Plaintiff leave to file an Amended Complaint. (ECF No. 31.) On June 12, 2023, Plaintiff filed the following papers: (1) an opposition to Defendant’s motion to dismiss (ECF No. 34), (2) a motion to appoint counsel (ECF No. 33), (3) a motion to amend the Complaint (ECF No. 35), and (4) an Amended Complaint (ECF No. 36). The Court addresses each in turn. I. Plaintiff's Opposition to Defendant’s Motion to Dismiss Defendant filed a motion to dismiss the Complaint on October 28, 2022. (ECF No. 25.) Plaintiff did not oppose Defendant’s motion. Plaintiff, however, has now filed an opposition to
Defendant’s motion. (ECF No. 34.) This Court already denied Defendant’s motion because Plaintiff sought leave to amend the Complaint and the Court granted leave. (ECF No. 31.) Accordingly, there is no outstanding motion for Plaintiff to oppose at this time, and as such, Plaintiff’s opposition is moot and the Court strikes it from the docket.
II. Plaintiff’s Motion to Appoint Counsel Plaintiff asks this Court to appoint counsel. (ECF No. 34.) 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 Iowa, 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. Here, the proceedings are still in their early stages, and the parties have yet to enter discovery or make summary judgment motions. Thus, the Court is unable to conclude that Plaintiff
cannot handle the case without assistance, although this conclusion may change as the action progresses. Furthermore, the Court still cannot ascertain whether Plaintiff’s position shows a strong chance of success, nor do the legal issues in this case appear to be particularly complex. Therefore, because the Court does not find any circumstances which warrant the appointment of pro bono counsel at this time, Plaintiff’s request is DENIED without prejudice to renew at a later stage in the proceedings. Plaintiff, however, may wish to consult the legal clinic in this District that assists people who are parties in civil cases and who do not have lawyers. The New York Legal Assistance Group (“NYLAG”) operates the clinic. Because the clinic is not part of the court, among other things, 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. To receive limited-scope assistance from the Clinic, Plaintiff may mail a signed retainer and intake form to the NYLAG Pro Se Clinic at 40 Foley Square, LL22, NY, NY 10007. Once the paperwork is received, the Clinic will coordinate contact with the litigant, which may take up to two weeks after receipt of the paperwork. Copies of the Clinic’s flyer, retainer, and intake form are attached to this order. III. Plaintiff’s Motion to Amend the Complaint Plaintiff moves the Court to grant leave to amend the Complaint. (ECF No. 35.) This Court already granted Plaintiff leave to amend the Complaint no later than July 19, 2023. (ECF
No. 31.) Plaintiff has done so, filing the Amended Complaint on June 12, 2023. (ECF No. 36.) As such, Plaintiff’s motion to amend the Complaint is DENIED as moot, and the Court deems the Amended Complaint to be the operative one. Defendant is directed to answer the Amended Complaint or otherwise seek leave to move in response to the Amended Complaint no later than July 6, 2023. CONCLUSION Because there is no outstanding motion for Plaintiff to oppose at this time, Plaintiff's opposition is moot. The Court respectfully directs the Clerk of Court to strike ECF No. 34 from the docket. Because the Court does not find any circumstances which warrant the appointment of pro bono counsel at this time, Plaintiff’ s request is DENIED without prejudice to renew at a later stage in the proceedings. Because the Court recently granted Plaintiff's request to amend the Complaint, Plaintiffs present motion to amend the Complaint is DENIED as moot, and the Court deems the Amended Complaint to be the operative one. Defendant is directed to answer the Amended Complaint or otherwise seek leave to move in response to the Amended Complaint no later than July 6, 2023. The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 33 and 35. The Clerk of Court is respectfully directed to mail a copy of this Order to Plaintiff at his address as listed on ECF and to show service on the docket.
Dated: June 15, 2023 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.
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DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 6/15/2023 _
ERIC CARATTINI, Plaintiff, 21-cv-9373 (NSR) -against- ORDER CHRISTOPHER BEHUN, Defendant.
NELSON S. ROMAN, United States District Judge Plaintiff Eric Cesar Carattini, who is currently incarcerated and is appearing pro se, brings this action against Christopher Behun, a Senior Investigator with the New York State Police Drug Enforcement Task Force. The Court construes Plaintiff's complaint as asserting claims under 42 U.S.C. § 1983 and state law. Defendant filed a motion to dismiss the original Complaint on October 28, 2022 (ECF No. 25), which Plaintiff did not oppose. By letter dated May 30, 2023, Plaintiff informed the Court that he planned to file (1) an opposition to Defendant’s motion to dismiss, (2) a motion to appoint counsel, (3) a motion to amend the Complaint, and (4) an Amended Complaint. (ECF No. 30.) In light of Plaintiffs letter, the Court denied without prejudice Defendant’s motion to dismiss and granted Plaintiff leave to file an Amended Complaint. (ECF No. 31.) On June 12, 2023, Plaintiff filed the following papers: (1) an opposition to Defendant’s motion to dismiss (ECF No. 34), (2) a motion to appoint counsel (ECF No. 33), (3) a motion to amend the Complaint (ECF No. 35), and (4) an Amended Complaint (ECF No. 36). The Court addresses each in turn. I. Plaintiff's Opposition to Defendant’s Motion to Dismiss Defendant filed a motion to dismiss the Complaint on October 28, 2022. (ECF No. 25.) Plaintiff did not oppose Defendant’s motion. Plaintiff, however, has now filed an opposition to
Defendant’s motion. (ECF No. 34.) This Court already denied Defendant’s motion because Plaintiff sought leave to amend the Complaint and the Court granted leave. (ECF No. 31.) Accordingly, there is no outstanding motion for Plaintiff to oppose at this time, and as such, Plaintiff’s opposition is moot and the Court strikes it from the docket.
II. Plaintiff’s Motion to Appoint Counsel Plaintiff asks this Court to appoint counsel. (ECF No. 34.) 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 Iowa, 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. Here, the proceedings are still in their early stages, and the parties have yet to enter discovery or make summary judgment motions. Thus, the Court is unable to conclude that Plaintiff
cannot handle the case without assistance, although this conclusion may change as the action progresses. Furthermore, the Court still cannot ascertain whether Plaintiff’s position shows a strong chance of success, nor do the legal issues in this case appear to be particularly complex. Therefore, because the Court does not find any circumstances which warrant the appointment of pro bono counsel at this time, Plaintiff’s request is DENIED without prejudice to renew at a later stage in the proceedings. Plaintiff, however, may wish to consult the legal clinic in this District that assists people who are parties in civil cases and who do not have lawyers. The New York Legal Assistance Group (“NYLAG”) operates the clinic. Because the clinic is not part of the court, among other things, 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. To receive limited-scope assistance from the Clinic, Plaintiff may mail a signed retainer and intake form to the NYLAG Pro Se Clinic at 40 Foley Square, LL22, NY, NY 10007. Once the paperwork is received, the Clinic will coordinate contact with the litigant, which may take up to two weeks after receipt of the paperwork. Copies of the Clinic’s flyer, retainer, and intake form are attached to this order. III. Plaintiff’s Motion to Amend the Complaint Plaintiff moves the Court to grant leave to amend the Complaint. (ECF No. 35.) This Court already granted Plaintiff leave to amend the Complaint no later than July 19, 2023. (ECF
No. 31.) Plaintiff has done so, filing the Amended Complaint on June 12, 2023. (ECF No. 36.) As such, Plaintiff’s motion to amend the Complaint is DENIED as moot, and the Court deems the Amended Complaint to be the operative one. Defendant is directed to answer the Amended Complaint or otherwise seek leave to move in response to the Amended Complaint no later than July 6, 2023. CONCLUSION Because there is no outstanding motion for Plaintiff to oppose at this time, Plaintiff's opposition is moot. The Court respectfully directs the Clerk of Court to strike ECF No. 34 from the docket. Because the Court does not find any circumstances which warrant the appointment of pro bono counsel at this time, Plaintiff’ s request is DENIED without prejudice to renew at a later stage in the proceedings. Because the Court recently granted Plaintiff's request to amend the Complaint, Plaintiffs present motion to amend the Complaint is DENIED as moot, and the Court deems the Amended Complaint to be the operative one. Defendant is directed to answer the Amended Complaint or otherwise seek leave to move in response to the Amended Complaint no later than July 6, 2023. The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 33 and 35. The Clerk of Court is respectfully directed to mail a copy of this Order to Plaintiff at his address as listed on ECF and to show service on the docket.
Dated: June 15, 2023 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 40 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. Disclaimer: The information contained herein is for informational purposes only and is not legal advice or a substitute for legal counsel, nor does it constitute advertising or a solicitation.
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