The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RAHBU BEHLIN,
Plaintiff,
18 Civ. 4335 (KPF)
-v. -
ORDER
RITE AID PHARMACY STORE, et al.,
Defendants.
KATHERINE POLK FAILLA, District Judge:
On July 21, 2020, the Court received Plaintiff’s letter requesting
permission to file an application for pro bono counsel (Dkt. #64), and by Order
dated July 24, 2020, the Court granted Plaintiff’s request to file an application
for appointment of pro bono counsel (Dkt. #65). Plaintiff submitted his
application for pro bono counsel on August 20, 2020. (Dkt. #70). For the
reasons discussed below, Plaintiff’s application for appointment of pro bono
counsel is granted in part. The Clerk of Court is directed to attempt to locate
pro bono counsel to represent Plaintiff for the limited purpose of pursuing
discovery.
Pursuant to 28 U.S.C. § 1915(e)(1), courts may appoint an attorney to
represent someone unable to afford counsel. Plaintiff filed a Request to
Proceed in Forma Pauperis (IFP), which the Court granted. (See Dkt. #4 (Order
dated June 1, 2018). Plaintiff therefore qualifies as indigent. Courts possess
broad discretion when determining whether appointment is appropriate,
“subject to the requirement that it be ‘guided by sound legal principle.’” Cooper
v. A. Sargenti Co., Inc., 877 F.2d 170, 171-72 (2d Cir. 1989) (quoting Jenkins v.
Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983)). The Second Circuit set
forth the principle as follows:
[T]he district judge should first determine whether the
indigent’s position seems likely to be of substance. If
the claim meets this threshold requirement, the court
should then consider 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.
Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). The Second Circuit
also held that these factors are not restrictive and that “[e]ach case must be
decided on its own facts.” Id. at 61.
The Court has reviewed the Complaint (Dkt. #2); the factual allegations
added to the Complaint pursuant to the parties’ May 3, 2019 conference (see
Dkt. #36 (transcript)); the anticipated discovery disputes raised by Plaintiff in
his July 21, 2020 letter and accompanying exhibits (Dkt. #64); and Plaintiff’s
application for appointment of pro bono counsel (Dkt. #70). Plaintiff asserts
claims under 42 U.S.C. § 1983, alleging that his constitutional rights were
violated when he was assaulted by Defendant Rite Aid’s employees (acting
under color of state law) and when Defendant NYPD officers denied him
medical attention. (See Dkt. #36). Plaintiff’s claims will rise and fall on his
ability to depose Defendant police officers and Rite Aid employees, the key
participants and witnesses to the alleged misconduct. Because Plaintiff
requires multiple depositions to advance his case, and because his claims raise
complex legal issues such as qualified immunity and the state action doctrine,
the Court finds that, in this case, representation would “lead to a quicker and
more just result by sharpening the issues and shaping examination.” Hodge,
802 F.2d at 61.
For the foregoing reasons, the Clerk of Court is directed to attempt to
locate pro bono counsel to represent Plaintiff for the limited purpose of pursing
discovery once the stay in this case is lifted on September 14, 2020. The Court
advises Plaintiff that there are no funds to retain counsel in civil cases and the
Court relies on volunteers. Due to a scarcity of volunteer attorneys, a lengthy
period of 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. The Court has established
a Pro Bono Fund to encourage greater attorney representation of pro se
litigants. The Fund is especially 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.
If Plaintiff does not want the Court to seek counsel to represent him, he
must inform the Court by September 13, 2020. If Plaintiff does want a
volunteer attorney to represent him, the Court requests that he so inform it
immediately, so that the case can move forward once the stay is lifted.
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.
Dated: August 24, 2020 4 ~~?
New York, New York Kathe Mal. flr
Katherine Polk Failla
United States District Judge
Sent by First Class Mail to:
Rahbu Behlin
17-A-1400
Otisville Correctional Facility
P.O. Box 8
Otisville, NY 10963