The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANTHONY CASIANO,
Plaintiff,
-v. -
CAPT. THEAGRE, No. 1851;
CORRECTIONAL OFFICER K. LUTON,
No. 5144; CORRECTIONAL OFFICER C.
FOOTE, No. 5509; CORRECTIONAL
OFFICER TIM GRAY, No. 17389; 19 Civ. 5226 (KPF)
CORRECTIONAL OFFICER K. SHEPARD,
ORDER
No. 11487; CORRECTIONAL OFFICER
RUCKER, No. 2398; CORRECTIONAL
OFFICER B. GERADEAU, No. 9037;
CORRECTIONAL OFFICER A.
CAPEHART, No. 3713; CORRECTIONAL
OFFICER SEIVWRIGHT, No. 17414;
NICOLAS FRANTZ; WARDEN KISA
SMALLS; THE CITY OF NEW YORK,
Defendants.
KATHERINE POLK FAILLA, District Judge:
On the record on July 7, 2021, Plaintiff sought leave to renew his
application for the appointment of pro bono counsel, which application the
Court granted. (See Minute Entry for July 7, 2021). On July 13, 2021, the
Court received Plaintiff’s application for the appointment of pro bono counsel
(Dkt. #190). 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. #6 (Order
dated July 9, 2019)). 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 Third Amended Complaint (Dkt. #151), and
has discussed the anticipated discovery sought by the parties on the record on
July 7, 2021. Plaintiff asserts claims under 42 U.S.C. § 1983, alleging that his
constitutional rights were violated when he was assaulted by Defendant
Correctional Officers while incarcerated at the Rikers Island facility, and that
he received inadequate medical care after this assault. (See id.). Plaintiff’s
claims will rise and fall on his ability to depose Defendants, 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, 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. 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.
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).
The Clerk of Court is directed to mail a copy of this Order to Plaintiff.
SO ORDERED.
Dated: July 16, 2021 j
New York, New York Kathe alc fild-
KATHERINE POLK FAILLA
United States District Judge