USDC SDNY UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED sao: DOC# David Riley, DATE FILED: 07/12/2023 Plaintiff, 1:23-cv-02237 (MKV) (SDA) -against- ORDER Chris Kuehne, Jr., Defendant.
David Riley, Plaintiff, 1:23-cv-03928 (MKV) (SDA) -against- Chris Kuehne, Sr., Life Union and Life Benefit Plan, Defendants.
STEWART D. AARON, United States Magistrate Judge: Before the Court is Plaintiff’s application to proceed in forma pauperis (“IFP”) and Plaintiff’s application for the Court to appoint pro bono counsel. (See 5/8/23 IFP Application, 23- cv-02237, ECF No. 14; App. for Pro Bono Counsel, 23-cv-02237, ECF No. 15.) For the reasons stated below, Plaintiff’s applications are GRANTED. LEGAL STANDARDS Any court of the United States may authorize the commencement and prosecution of a civil action without prepayment of fees or security therefor by a person who submits an affidavit that includes a statement of all assets such person possesses and that the person is unable to pay such fees or give security therefor. See 28 U.S.C. § 1915(a)(1).
The IFP statute provides that the courts “may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Unlike in criminal cases, in civil cases, there is no requirement that courts supply indigent litigants with counsel. See Hodge v. Police Officers,
802 F.2d 58, 60 (2d Cir. 1986). Instead, the courts have “broad discretion” when deciding whether to seek pro bono representation for a civil litigant. Id. 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. See Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 301-10 (1989). Moreover, courts do not have funds to pay counsel in civil matters. See Torres v. Sushi Sushi
Holdings Inc., No. 19-CV-02532 (PAE) (RWL), 2021 WL 2887693, at *2 (S.D.N.Y. July 9, 2021). In Hodge, the Second Circuit Court of Appeals set forth the factors a court should consider in deciding whether to grant a litigant’s request for pro bono counsel. 802 F.2d at 61-62. The litigant must first demonstrate that he or she is indigent, for example, by successfully applying for leave to proceed IFP. The court then must consider whether the litigant’s claim “seems likely to
be of substance” – “a requirement that must be taken seriously.” Id. at 60-61. If these threshold requirements are met, the court must next consider such factors as: the indigent’s ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent’s ability to present the case, the complexity of the legal issues[,] and any special reason in that case why appointment of counsel would be more likely to lead to a just determination. Id. In considering these factors, district courts should neither apply bright-line rules nor automatically deny the request for counsel until the application has survived a dispositive motion. See Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Rather, each application must be decided on its own facts. See Hodge, 802 F.2d at 61. DISCUSSION
The Court has reviewed Plaintiff’s IFP application and finds that Plaintiff has met the statutory requirements for in forma pauperis status. Thus, Plaintiff’s application is granted, and he qualifies as indigent. Regarding Hodge’s other threshold requirement, i.e., an evaluation of the merits of Plaintiff’s claims, the Court finds that, based solely upon its initial review of Plaintiff’s factual allegations (see 23-CV-02237 Compl., ECF No. 2-2; 23-CV-03928 Compl., ECF No. 2-2), without the benefit of any legal briefing from Defendants, plausibly may support a claim pursuant
to the National Labor Relations Act. The Court finds that the other Hodge factors weigh in favor of granting Plaintiff’s application. Plaintiff indicates that he has taken steps to retain counsel, but these have been unsuccessful. (See App. for Pro Bono Counsel at 2; Pl.’s 5/8/23 Ltr., ECF No. 16, at 1.) Plaintiff has asserted that in addition to being indigent, Plaintiff suffers from health problems and is unable to adequately represent himself. (See App. for Pro Bono Counsel at 1; Pl.’s 5/8/23 Ltr. at 1.) Thus, the
Court finds that Plaintiff is unlikely to be able to investigate his claims, conduct thorough discovery and prepare for trial without representation. This case involves factual disputes concerning Defendants’ conduct. The outcome of this case may depend on information which only can be gleaned from discovery. In this case, appointing counsel would assist Plaintiff through the discovery process, leading to a “quicker and more just result by sharpening the issues and shaping examination.” Hodge, 802 F.2d at 61. CONCLUSION For the foregoing reasons, Plaintiff’s application to proceed IFP and Plaintiff’s application for the Court to appoint pro bono counsel are GRANTED. As noted above, there are no funds to
retain counsel in civil cases and the Court relies on volunteers. Due to a scarcity of volunteer attorneys, some time may pass before counsel volunteers to represent Plaintiff. Nevertheless, this litigation will progress at a normal pace. If an attorney volunteers, the attorney will contact Plaintiff directly. There is no guarantee, however, that a volunteer attorney will decide to take the case, and Plaintiff should be prepared to proceed with the case pro se. Of course, if an attorney offers to take the case, it is entirely
Plaintiff’s decision whether to retain that attorney or not. The Court has established a Pro Bono Fund to encourage greater attorney representation of pro se litigants. See https://nysd.uscourts.gov/forms/pro-bono-fund-order. In the interim, Plaintiff may consider contacting the New York Legal Assistance Group (NYLAG) 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. The clinic is run by a private organization; it is not part of, or run by, the Court. 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, parties may complete the clinic’s intake form on their computer or phone at: https://tinyurl.com/NYLAG-ProSe-OI. If Plaintiff has questions regarding the form or Plaintiff is unable to complete it, Plaintiff may leave a voicemail at (212) 659-5190. The Clinic is open on weekdays from 10 a.m. to 4 p.m., except on days when the Court is closed. A copy of the flyer with details of the clinic is attached to this order. SO ORDERED. Dated: New York, New York July 12, 2023
STEWART D. AARON United States Magistrate Judge
SD lee Pe ew Since 1990, NYLAG has provided free civil legal services New York ME Legal Assistance Group to New Yorkers who cannot afford private attorneys.
Free Legal Assistance for Self-Represented Civil Litigants in District Court for the Southern District Of New Yor|
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USDC SDNY UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED sao: DOC# David Riley, DATE FILED: 07/12/2023 Plaintiff, 1:23-cv-02237 (MKV) (SDA) -against- ORDER Chris Kuehne, Jr., Defendant.
David Riley, Plaintiff, 1:23-cv-03928 (MKV) (SDA) -against- Chris Kuehne, Sr., Life Union and Life Benefit Plan, Defendants.
STEWART D. AARON, United States Magistrate Judge: Before the Court is Plaintiff’s application to proceed in forma pauperis (“IFP”) and Plaintiff’s application for the Court to appoint pro bono counsel. (See 5/8/23 IFP Application, 23- cv-02237, ECF No. 14; App. for Pro Bono Counsel, 23-cv-02237, ECF No. 15.) For the reasons stated below, Plaintiff’s applications are GRANTED. LEGAL STANDARDS Any court of the United States may authorize the commencement and prosecution of a civil action without prepayment of fees or security therefor by a person who submits an affidavit that includes a statement of all assets such person possesses and that the person is unable to pay such fees or give security therefor. See 28 U.S.C. § 1915(a)(1).
The IFP statute provides that the courts “may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Unlike in criminal cases, in civil cases, there is no requirement that courts supply indigent litigants with counsel. See Hodge v. Police Officers,
802 F.2d 58, 60 (2d Cir. 1986). Instead, the courts have “broad discretion” when deciding whether to seek pro bono representation for a civil litigant. Id. 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. See Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 301-10 (1989). Moreover, courts do not have funds to pay counsel in civil matters. See Torres v. Sushi Sushi
Holdings Inc., No. 19-CV-02532 (PAE) (RWL), 2021 WL 2887693, at *2 (S.D.N.Y. July 9, 2021). In Hodge, the Second Circuit Court of Appeals set forth the factors a court should consider in deciding whether to grant a litigant’s request for pro bono counsel. 802 F.2d at 61-62. The litigant must first demonstrate that he or she is indigent, for example, by successfully applying for leave to proceed IFP. The court then must consider whether the litigant’s claim “seems likely to
be of substance” – “a requirement that must be taken seriously.” Id. at 60-61. If these threshold requirements are met, the court must next consider such factors as: the indigent’s ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent’s ability to present the case, the complexity of the legal issues[,] and any special reason in that case why appointment of counsel would be more likely to lead to a just determination. Id. In considering these factors, district courts should neither apply bright-line rules nor automatically deny the request for counsel until the application has survived a dispositive motion. See Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Rather, each application must be decided on its own facts. See Hodge, 802 F.2d at 61. DISCUSSION
The Court has reviewed Plaintiff’s IFP application and finds that Plaintiff has met the statutory requirements for in forma pauperis status. Thus, Plaintiff’s application is granted, and he qualifies as indigent. Regarding Hodge’s other threshold requirement, i.e., an evaluation of the merits of Plaintiff’s claims, the Court finds that, based solely upon its initial review of Plaintiff’s factual allegations (see 23-CV-02237 Compl., ECF No. 2-2; 23-CV-03928 Compl., ECF No. 2-2), without the benefit of any legal briefing from Defendants, plausibly may support a claim pursuant
to the National Labor Relations Act. The Court finds that the other Hodge factors weigh in favor of granting Plaintiff’s application. Plaintiff indicates that he has taken steps to retain counsel, but these have been unsuccessful. (See App. for Pro Bono Counsel at 2; Pl.’s 5/8/23 Ltr., ECF No. 16, at 1.) Plaintiff has asserted that in addition to being indigent, Plaintiff suffers from health problems and is unable to adequately represent himself. (See App. for Pro Bono Counsel at 1; Pl.’s 5/8/23 Ltr. at 1.) Thus, the
Court finds that Plaintiff is unlikely to be able to investigate his claims, conduct thorough discovery and prepare for trial without representation. This case involves factual disputes concerning Defendants’ conduct. The outcome of this case may depend on information which only can be gleaned from discovery. In this case, appointing counsel would assist Plaintiff through the discovery process, leading to a “quicker and more just result by sharpening the issues and shaping examination.” Hodge, 802 F.2d at 61. CONCLUSION For the foregoing reasons, Plaintiff’s application to proceed IFP and Plaintiff’s application for the Court to appoint pro bono counsel are GRANTED. As noted above, there are no funds to
retain counsel in civil cases and the Court relies on volunteers. Due to a scarcity of volunteer attorneys, some time may pass before counsel volunteers to represent Plaintiff. Nevertheless, this litigation will progress at a normal pace. If an attorney volunteers, the attorney will contact Plaintiff directly. There is no guarantee, however, that a volunteer attorney will decide to take the case, and Plaintiff should be prepared to proceed with the case pro se. Of course, if an attorney offers to take the case, it is entirely
Plaintiff’s decision whether to retain that attorney or not. The Court has established a Pro Bono Fund to encourage greater attorney representation of pro se litigants. See https://nysd.uscourts.gov/forms/pro-bono-fund-order. In the interim, Plaintiff may consider contacting the New York Legal Assistance Group (NYLAG) 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. The clinic is run by a private organization; it is not part of, or run by, the Court. 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, parties may complete the clinic’s intake form on their computer or phone at: https://tinyurl.com/NYLAG-ProSe-OI. If Plaintiff has questions regarding the form or Plaintiff is unable to complete it, Plaintiff may leave a voicemail at (212) 659-5190. The Clinic is open on weekdays from 10 a.m. to 4 p.m., except on days when the Court is closed. A copy of the flyer with details of the clinic is attached to this order. SO ORDERED. Dated: New York, New York July 12, 2023
STEWART D. AARON United States Magistrate Judge
SD lee Pe ew Since 1990, NYLAG has provided free civil legal services New York ME Legal Assistance Group to New Yorkers who cannot afford private attorneys.
Free Legal Assistance for Self-Represented Civil Litigants in District Court for the Southern District Of New Yor|
NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York is a fre clinic staffed by attorneys, law students and paralegals to assist those who are themselves or planning to represent themselves in civil lawsuits in the outhern District of New York. The clinic does not provide full representation. The clinic, is not part of or run by the court, assists litigants with federal civil cases including involving civil rights, employment discrimination, labor law, social security benefit: and tax.
Contact the Clinic: (212) 659-6190 or complete our online intake form (found here: A staff member will contact you within a few days.
looking for assistance can also contact the clinic at the kiosk located across the hall the pro se clinic office in the courthouse.
this time, the clinic offers remote consultations only. Requests for in- appointments will be reviewed on a case-to-case basis. and Hours: Marshall United States Courthouse
Room LL22 40 Foley Square New York, NY 10007 (212) 659 6190 Open weekdays 10 a.m. — 4 p.m. Closed on federal and court holidays
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= = eee 14 ESE ° . New York ME Legal Assistance Group District of New York
The NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York provides free limited legal assistance to individuals who are representing themselves or planning to represent themselves in civil lawsuits in federal court in Manhattan and White Plains. The clinic is staffed by attorneys, law students, and paralegals. Information given to clinic staff is confidential.
Clinic Staff Can: Clinic Staff Cannot: Advise on filing cases in federal court e Assist with federal civil cases that belong in a including on the issue of whether a = 3 different federal court, such as the Eastern District of should be filed in the Southern District of New York, which covers of New York, which covers New York or somewiierocisd Brooklyn, Queens, Staten Island, and Nassau and Provide legal advice in response to questions Suffolk Counties; that come up at any stage of litigation; e Assist with an appeal of your federal case; Assist in getting additional information or e Assist with state court cases, bankruptcy court cases, research into the legal issue in your case; or criminal cases; oo Review and explain court orders and filings ¢ Pay any of the costs associated with filing or by your opponent, and provide an overview of defending a lawsuit in federal court; the federal legal process in civil cases e File documents with the court on your behalf; generally; e Appear on your behalf other than representation at a Assist with motions, discovery, and strategy; mediation through the Southern District’s Alternative Assist with getting ready for depositions, Dispute Resolution Program, a court-ordered pretrial conferences, mediations, and court settlement conference, or, in appropriate cases, a appearances; deposition; Provide forms and instructions manuals; ° Write court documents for you, or In appropriate cases, help you retain bono ° Conduct an investigation into the facts of your case. counsel; Inappropriate cases, represent you in a Clinic Staff May Decline Assistance If: mediation through the Southern District’s Alternative Dispute Resolution Program, ora NYLAG has already given advice to your opponent; court-ordered settlement conference; e Your legal problem is beyond the scope of matters Inappropriate cases, represent you at a handled by the clinic; deposition; and e Providing assistance would conflict with the New York Inappropriate cases, provide referrals to Rules of Professional Conduct; other agencies and organizations that provide e Your income and/or assets are high enough to allow you civil legal services and/or social services. to retain private counsel; or e NYLAG determines, in its professional legal judgement, that (i) you have refused to cooperate with the Clinic’s counsel or follow the Clinic’s advice; (ii) any assistance would be unreasonably difficult for NYLAG to carry out; or (iii) your case is or will become frivolous, unreasonable, groundless, or without merit.
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