Herbert v. Lynch

Opinion

\DOCUMENT □□□ -BLECTRONICAEE? UNITED STATES DISTRICT COURT DOC He ame □□□□ □□□ SOUTHERN DISTRICT OF NEW YORK | DATE rim: 5/2122 Jeremiah Herbert, eee

Plaintiff, 22 Civ. 6303 (NSR)(PED) - against - Charles Lynch, et aL, ORDER Defendants. PAUL E, DAVISON, U.S.M.I.: This matter comes before me pursuant to an Order of Reference dated February 6, 2023. (Dkt. 26.) By application dated March 28, 2023, plaintiff pro se seeks the appointment of pro bono counsel. (Dkt. 35.) Although plaintiffs in civil litigation have “no right to counsel,” the Court may “in its discretion order that the Pro Se Office seek counsel for plaintiff, in which case plaintiff's matter will be placed on a list that is circulated to attorneys who are members of the Pro wn Panel of the Court.” Palacio v. City of New York, 489 F. Supp. 2d 335, 344 (S.D.N.Y. 2007); see also 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford counsel.”’); Burgos y. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994) (“There is no requirement that an indigent litigant be appointed pro bone counsel in civil matters... .”). Before exercising this discretion, the Court must “first determine” whether the plaintiff is indigent and “whether the [plaintiff]’s position seems likely to be of substance.” Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986); see also Hendricks v. Coughlin, 114 F.3d 390, 392—93 (2d Cir. 1997). Because

_ “[vJolunteer lawyer time is a precious commodity,” “courts should not grant . . . applications [to request pro bono counsel] indiscriminately” but rather must reserve such requests for those litigants who truly need a lawyer’s assistance. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170,

172-73 (2d Cir. 1989). Accordingly, before granting a litigant’s request for appointment of counsel, the court must consider whether the litigant has met the “requirement of a threshold showing of merit.” Hendricks, 114 F.3d at 394 (internal quotation marks omitted). If this “threshold requirement” is met, then the Court considers additional factors, including the plaintiff's “ability to investigate the crucial facts,” the plaintiff's “ability to present [his] case,” the “complexity of the legal issues” presented in the case, the plaintiffs mability to obtain counsel on his own, and “any special reason .. . why appointment of counsel would be more likely to lead to a just determination.” Hodge, 802 F.2d at 61-62. Although the Court accepts, for purposes of this request, plaintiff's representation that he is indigent, because the instant case is at a preliminary stage, the Court cannot presently ascertain whether or not plaintiff's claims meet the threshold merit requirement. In addition, plaintiff pro se has to date proved capable of handling his case without counsel; he has engaged in discovery, and accordingly shown an ability to effectively prosecute his case. Plaintiff's motign is hereby DENIED WITHOUT PREJUDICE. The clerk is respectfully directed to terminate the motion (Dkt. 35).

Dated: May 2, 2023 White Plains, New York ae f Ce \ on Be SA □ ee ttt AN mmm" Baul E, Davison United States Magistrate Judge