O'Kane v. New York State Department of Correctional Service

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DAVID O’KANE, Plaintiff, -against- 20-CV-2148 (LLS) NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICE; THE LEGAL ORDER AID SOCIETY; RICHARD DeSLOM; JANE DOE, Parole Officer, Defendants. LOUIS L. STANTON, United States District Judge: Plaintiff, proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983. By order dated July 10, 2020, the Court directed Plaintiff to amend his complaint to cure its deficiencies. (ECF No. 7.) On September 1, 2020, Plaintiff submitted an application to request pro bono counsel. (ECF No. 9.) The factors to be considered in ruling on an indigent plaintiff’s motion for pro bono counsel include the merits of the case, the plaintiff’s efforts to obtain a lawyer, and the 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 [that] command[s] the most attention.” Cooper, 877 F.2d at 172. And even if a court does believe that a litigant should have a free lawyer, under the in forma pauperis statute, a court has no authority to “appoint” counsel, but instead, may only “request” that an attorney volunteer to represent a litigant. Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 301-10 (1989). Because it is too early in the proceedings for the Court to assess the merits of this action, the Court denies Plaintiff’s motion for pro bono counsel without prejudice to Plaintiff’s filing a new application for the Court to request pro bono counsel at a later date. The Court grants Plaintiff an extension of time to comply with the July 10, 2020 order to amend. Plaintiff may wish to consider contacting the New York Legal Assistance Group’s (NYLAG) Legal 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. They may be able to help Plaintiff amend his pleading. A copy of the flyer with details of the clinic is attached to this order. The clinic is currently only available by telephone. CONCLUSION The Court denies Plaintiffs motion for pro bono counsel without prejudice, and the Clerk of Court is directed to terminate it (ECF 9.) Plaintiff is directed to file an amended complaint that complies with the July 10, 2020 order. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 20-CV-2148 (LLS). No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed. Plaintiff has consented to electronic service of court documents. SO ORDERED. Dated: September 1, 2020 New York, New York Leis L Stent _ Louis L. Stanton US.D.J.

Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys. NEW YORK LEGAL ASSISTANCE GROUP

Free Legal Assistance for Self-Represented Civil Litigants in Federal District Court in Manhattan and White Plains

The NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York is a free legal clinic staffed by attorneys and paralegals to assist those who Thurgood Marshall are representing themselves or planning to United States Courthouse represent themselves in civil lawsuits in the Room LL22 Southern District of New York. The clinic, 40 Centre Street which is not part of or run by the court, New York, NY 10007 assists litigants with federal civil cases (212) 659 6190 including cases involving civil rights, employment discrimination, labor law, Open weekdays social security benefits, foreclosure and tax. lO a.m.- 4 p.m. The clinic cannot assist individuals while Closed on federal and court holidays they are incarcerated, but can provide assistance to litigants once they are released from custody. To make an appointment for a The Hon. Charles L. Brieant Jr. consultation, call (212) 659-6190 or come Federal Building and Courthouse by either clinic during office hours. Please 300 Quarropas St note that a government-issued photo ID is White Plains, NY 10601 required to enter either building. (212) 659 6190 The clinic offers in-person Open Wednesday appointments only. The clinic does [2 p.m.- 4 p.m. not offer assistance over the phone Closed on federal and court holidays or by email.

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