Opinion

Jhagroo v. Brown (John Doe)

Court
District Court, S.D. New York
Filed
Jul 24, 2020
Cited by
0 cases
Authority
More cited than 27.1%

The opinion

UNITED STATES DISTRICT COURT D ELO EC CU TM RE ON NT IC ALLY FILED

SOUTHERN DISTRICT OF NEW YORK DOC #:

DATE FILED: 7/24/2 020

RYAN JHAGROO,

Plaintiff,

16-cv-3426 (MKV)

-against-

ORDER GRANTING

PRO BONO COUNSEL

OFFICER BROWN et al.,

Defendants.

MARY KAY VYSKOCIL, United States District Judge:

The Court respectfully directs the Clerk of Court to seek pro bono counsel to enter a

limited appearance for the purpose of trial in the above-captioned matter. Counsel will file a

Notice of Limited Appearance as Pro Bono Counsel.

LEGAL STANDARD

The in forma pauperis statute provides that 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. 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. Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 301–310

(1989). Moreover, courts do not have funds to pay counsel in civil matters. Courts must

therefore request the services of pro bono counsel sparingly, and with reference to public benefit,

in order to preserve the “precious commodity” of volunteer-lawyer time for those litigants whose

causes are truly deserving. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir. 1989).

In Hodge, the Second Circuit Court of Appeals set forth the factors that 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 in forma pauperis. The court must then consider whether the

litigant’s claim “seems likely to be of substance.” 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.; see also Cooper, 877 F.2d at 172. In considering these factors, district courts should not

apply bright-line rules. 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

Plaintiff Ryan Jhagroo, proceeding pro se, brings this action asserting claims under 42

U.S.C. section 1983, stemming from an assault by fellow prisoners that allegedly occurred while

he was incarcerated at the Eric M. Taylor Center (“EMTC”) on Rikers Island on June 7, 2015.

Jhagroo filed a Request to Proceed in Forma Pauperis (IFP), which the Court granted [ECF #1,

4]. He therefore qualifies as indigent.

The background of this case is set forth in detail in the Court’s Memorandum and Order,

dated January 27, 2020, denying in part and granting in part the motion for summary judgment

filed by Defendants Correction Officer Brown and Correction Officer Hudson [ECF #105]. The

Court found triable issues as to Jhagroo’s claims that Officer Brown incited violence against him

and that both defendants failed to protect him. After the Court denied the motion for summary

judgment on those claims, the case proceeded before Magistrate Judge Aaron for settlement

negotiations and pre-trial preparation. Efforts to reach a settlement were unsuccessful, and

Magistrate Judge Aaron denied Jhagroo’s requests to amend his complaint and reopen discovery

[ECF#124]. This case is now ready for trial, and Jhagroo has requested the appointment of pro

bono counsel [ECF #125].

The Court finds that Jhagroo’s claims are “likely to be of substance,” particularly since

they have survived a dispositive motion. Hodge, 802 F.2d at 61–62. The Court finds that the

other Hodge factors also weigh in favor of granting Jhagroo’s application for pro bono counsel.

At trial, “conflicting evidence implicating the need for cross-examination will be the major proof

presented to the fact finder.” Id. at 60–61. In this case, representation would clearly “lead to

a . . . more just result.” Id. at 61.

Under the Court’s Standing Order regarding the Creation and Administration of the Pro

Bono Fund (16-MC-0078), pro bono counsel may apply to the Court for reimbursement of

certain out-of-pocket expenses spent in furtherance of Jhagroo’s case. The Court notes, however,

that the Pro Bono Fund is intended for attorneys for whom pro bono service is a financial

hardship. See http://www.nysd.circ2.dcn/docs/prose/pro_bono_fund_order.pdf.

Pro bono counsel will not be obligated to provide representation beyond the matters

described in this order. In particular, pro bono counsel will not be required to conduct discovery,

and the Court will not look favorably upon any request to reopen discovery at this late stage.

Upon the filing by pro bono counsel of a Notice of Completion, the representation by pro

bono counsel of Plaintiff in this matter will terminate, and pro bono counsel will have no further

obligations or responsibilities to Plaintiff or to the Court in this matter.

CONCLUSION

For the foregoing reasons, the Clerk of Court is directed to attempt to locate pro bono

counsel to represent Jhagroo for the limited purpose of trying this case. The Court advises

Jhagroo that there are no funds to retain counsel in civil cases and the Court relies on volunteers.

If an attorney volunteers to represent Jhagroo, the attorney will contact him directly. There is no

guarantee, however, that a volunteer attorney will decide to take the case, and Jhagroo should be

prepared to proceed to trial without an attorney.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would

not be taken in good faith and therefore IFP status is denied for the purpose of an appeal. See

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

i K “ / heed

Date: July 24, 2020 MARY AVAY VYSKOC

New York, NY United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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