Lu v. Rocah

• Court: District Court, S.D. New York
• Decided: March 15, 2023
• Docket: 7:22-cv-09715
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT USDC SONY SOUTHERN DISTRICT OF NEW YORK SMENE ELECTRONICALLY FILED JIANQIAO LU, DOC #: DATE FILED: 3/15/2023 Plaintiff, ———————— -against- MIRIAM E. ROCAH, in her official capacity as District Attorney for Westchester County; 7:22-CV-9715 (NSR) CATALINA BLANCO BUITRAGO, in her official capacity as Assistant District Attorney ORDER for Westchester County; LETITIA A. JAMES, in her official capacity as Attorney General of the State of New York; KATHY C. HOCHUL, in her official capacity as Governor of the State of New York, Defendants. NELSON S. ROMAN, United States District Judge: Pro se Plaintiff Jianqiao Lu (“Plaintiff”), a citizen of China, was arrested and charged in Westchester County, N.Y with criminal possession of a weapon in the first degree, see N.Y. Penal Law § 265.04(2), and criminal possession of a weapon in the second degree, see N.Y. Penal Law § 265.03(2). (ECF No. 2, the “Complaint,” 49 1, 2, 15.) Plaintiff, who is currently being held as a pretrial detainee in the Westchester County Jail, brought this action on November 14, 2022 under 42 US.C. § 1983, challenging the constitutionality of N.Y. Penal Law § 265.04(2), N.Y. Penal Law § 265.03(2), N.Y. Penal Law §§ 265.02(5)(i), and 265.01(5). Ud. J 1, 26-28.) He seeks injunctive and declaratory relief. Plaintiff sues, in their respective official capacities, the following defendants; (1) Miriam E. Rocah, the District Attorney of Westchester County; (2) Catalina Blanco Buitrago, a Westchester County Assistant District Attorney who, Plaintiff alleges, is currently prosecuting him; (3) Letitia A. James, the Attorney General of the State of New York; and (4) Kathy C. Hochul, the Governor of the State of New York. (See id. J 1, 3-8.) By order dated

November 15, 2022, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. (See ECF No. 5.) The Court is in receipt of incarcerated Plaintiff’s letter, dated March 7, 2023 and received on March 10, 2023. (ECF No. 11.) In the letter, Plaintiff requests (i) an extension of time for

service to be effected on Defendants. Plaintiff also states that he anticipates filing the following by March 31, 2023: (i)an amended complaint for declaratory and injunctive relief and a petition for writ of habeas corpus by March 31, 2023; (ii) an application for order to show cause as to why an amended complaint and petition for writ of habeas corpus; and (iii) memorandum of law in support his amended complaint and order to show cause filings. Plaintiff also requests that the Court reconsider the denial of his request for pro bono counsel. (See ECF No. 7), Order dated December 16, 2022) For the following reasons, the Court GRANTS Plaintiff leave to file an amended complaint on or before April 15, 2023, and DENIES reconsideration of the Court’s denial of pro bono counsel (see ECF No. 7), without prejudice. I. LEAVE TO AMEND

On December 16, 2022, the Court issued an Order of Service directing the U.S. Marshals Service to effect service of the complaint on the Defendants. (See ECF No. 7.) Because the U.S. Marshals Service has not indicated that it has served the named Defendants on the docket, nor has any Defendant responded to the Complaint, the Court GRANTS Plaintiff’s request to file an Amended Complaint. See Fed. R. Civ. P. (a)(1)(2). Plaintiff is directed to file the Amended Complaint on or before April 15, 2023. II. PRO BONO COUNSEL The Court DENIES re-consideration of its decision denying pro bono counsel without prejudice. (See ECF No. 7). 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. Palacio v. City of New York, 489 F. Supp. 2d 335, 344 (S.D.N.Y. 2007). The Second Circuit has 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, nothing has changed since this Court denied Plaintiff’s last application for pro bono counsel on December 16, 2022. (ECF No. 7.) The litigation has not developed at all; Defendants have yet to respond to the pleadings and there is still no indication that Plaintiff’s position shows a strong chance of success. Additionally, the Court cannot conclude that Plaintiff is unable to handle the case without assistance, although this conclusion may change as the action progresses. Therefore, because the Court does not find any circumstances which warrant the appointment of pro bono counsel at this time, Plaintiff's motion is DENIED without prejudice to renewal at a later stage in the proceedings. CONCLUSION The Court directs the Clerk of Court to mail a copy of this order to pro se Plaintiff at the address on the docket and show service on the docket. The Court GRANTS leave to file an Amended Complaint on or before April 15, 2023. The Court denies Plaintiff’s reconsideration motion for the appointment of pro bono counsel without prejudice to Plaintiff’s filing an application for the Court to request pro bono counsel at a later date. Lastly, the Court encourages pro se Plaintiff to contact the New York Legal Assistance Group Legal Clinic for Pro Se Litigants at the contact information provided in the attached flyer in order to seek assistance amending his complaint.

SO ORDERED. Dated: March 15, 2023 White Plains, New York NELSON S.ROMAN United States District Judge

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