Smolen v. Brown

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

SAMUEL J. SMOLEN,

Plaintiff,

No. 18-CV-7621 (KMK)

v.

ORDER

C.O. LAWTON P. BROWN, JR., et al.

Defendant.

KENNETH M. KARAS, District Judge:

Pro se Plaintiff Samuel J. Smolen, Jr. (“Plaintiff”), an inmate in Wende Correctional

Facility, brings this Action against Corrections Officer (“C.O.”) Lawton P. Brown (“Brown”),

C.O. Elvin D. De La Rosa (“De La Rosa”), C.O. Tyrone D. Darden (“Darden”), Sergeant

Andrew Nevins (“Nevins”), C.O. Lyle L. Carrington (“Carrington”), Lieutenant Brian J. Bodge

(“Bodge”), an unknown nurse (“Nurse Doe”), an unknown inmate (“Inmate Doe”), and I.G.R.C.

Supervisor Q. Quick (“Quick”) (collectively, “Defendants”). (See generally Compl. (Dkt. No.

2.) Plaintiff brings this Action pursuant to 42 U.S.C. § 1983, asserting violations of the First,

Eighth, and Fourteenth Amendments. On October 11, 2018, the Court granted Plaintiff’s

application to proceed in forma pauperis. (Dkt. No. 4.) Before the Court is Plaintiff’s

Application to Appoint Pro Bono Counsel (the “Application”). (Dkt. No. 80.)

Although there is not a constitutional right to counsel in civil cases, the Court has the

authority to appoint counsel for indigent parties. See 28 U.S.C. § 1915(e)(1). Yet, “[b]road

discretion lies with the district judge in deciding whether to appoint counsel pursuant to this

provision.” Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986). When analyzing whether

appointment of counsel is appropriate, the Court should undertake a two-step inquiry. See

Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 203 (2d Cir. 2003).

First, the Court “should . . . determine whether the indigent’s position seems likely to be

of substance.” Id. (quoting Hodge, 802 F.2d at 61); see also Johnston v. Maha, 606 F.3d 39, 41

(2d Cir. 2010) (“This Court considers motions for appointment of counsel by asking first

whether the claimant has met a threshold showing of some likelihood of merit.” (internal

quotation marks omitted)). In other words, the claim must not be so “highly dubious” that the

plaintiff appears to have no chance of success. Hodge, 802 F.2d at 60 (internal quotation marks

omitted). In making this determination, the Court construes pleadings drafted by pro se litigants

liberally and interprets them to raise the strongest arguments that they suggest. See Triestman v.

Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006); Sommersett v. City of New York, 679

F. Supp. 2d 468, 472 (S.D.N.Y. 2010). Second, “[i]f the claim meets this threshold

requirement,” the Court should proceed to consider other prudential factors such as Plaintiff’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 . . . why appointment of counsel would be more likely to lead to a

just determination.

Ferrelli, 323 F.3d at 203–04 (quoting Hodge, 802 F.2d at 61–62); see also Garcia v. USICE

(Dep’t of Homeland Sec.), 669 F.3d 91, 98–99 (2d Cir. 2011) (listing Hodge factors).

“Additionally, the Second Circuit has interpreted [28 U.S.C. § 1915(e)(1)] to require that

the plaintiff be unable to obtain counsel ‘before appointment will even be considered.’” Morris

v. Moran, No. 12-CV-7020, 2014 WL 1053658, at *1 (S.D.N.Y. Mar. 14, 2014) (quoting Hodge,

802 F.2d at 61); see also Justice v. Kuhnapfel, 982 F. Supp. 2d 233, 235 (E.D.N.Y. 2013) (“A

plaintiff requesting appointment of counsel must show that she is unable to obtain counsel before

appointment will even be considered.” (internal quotation marks omitted); Williams v. Nicholson,

No. 12-CV-8300, 2013 WL 1800215, at *2 (S.D.N.Y. Apr. 22, 2013) (“Where, in a civil action,

an applicant fails to make any effort to engage counsel, appointing counsel for the applicant is

not appropriate and should not even be considered . . . .”).

Here, Plaintiff alleges that, while he was incarcerated at Sing Sing Correctional Facility,

he was physically assaulted multiple times by corrections officers. (See Compl. 3–5.) Plaintiff

also alleges that he tried to file a grievance in connection with the assaults, but the corrections

officers he gave the grievances to refused to file them. (See id. at 5–7.)

For the purpose of addressing the Application, the Court construes Plaintiff’s Complaint

liberally and assumes it has “some likelihood of merit” such that it satisfies the threshold

requirement under Hodge. Johnston, 606 F.3d at 41 (quotation marks omitted); see also McCray

v. Lee, No. 16-CV-1730, 2020 WL 4229907, at *2 (S.D.N.Y. July 23, 2020) (assuming for the

purpose of the application for pro bono counsel that the plaintiff’s claims had “some likelihood

of merit”); Ahmad v. White Plains City Sch. Dist., No. 18-CV-3416, 2020 WL 3972274, at *3

(S.D.N.Y. July 14, 2020) (same); Simmons v. Diaz, No. 17-CV-8886, 2018 WL 11258138, at *4

(S.D.N.Y. May 8, 2018) (same).

However, turning to the second inquiry under Hodge regarding prudential factors, the

Court finds that Plaintiff has not shown why he needs counsel. Plaintiff’s claims “are not so

complex or unique that a person of Plaintiff’s intelligence would be unable to handle them at this

stage.” Mena v. City of N.Y., No. 12-CV-28, 2013 WL 1165554, at *2 (S.D.N.Y. Mar. 19, 2013).

Indeed, Plaintiff’s “complaint articulates a clear and concise statement of the facts,

demonstrating his ability to present his case.” Samet v. Dodrill, No. 05-CV-8795, 2006 WL

278176, at *2 (S.D.N.Y. Feb. 3, 2006). Plaintiff’s claim is largely based on the retelling of

events that happened in his presence and “do[es] not appear to require outside investigation.”

Person v. Ercole, No. 08-CV-7532, 2009 WL 855758, at *2 (S.D.N.Y. Mar. 26, 2009); cf.

Hendricks v. Coughlin, 114 F.3d 390, 394 (2d Cir. 1997) (granting a plaintiff’s motion for

appointment of counsel in part due to plaintiff’s incarceration, which “severely limit[ed] his

ability to investigate and present the crucial facts in what appear[ed] to be a fact-intensive case”).

Additionally, Plaintiff has demonstrated his ability to present the case himself through his

submissions in this instant Action that adequately express his arguments and desired forms of

relief. See Harrison v. N. Y C. Admin. for Children s Servs., No. 02-CV-947, 2002 WL 2022871,

at *1 (S.D.N.Y. Sept. 3, 2002) (noting that the plaintiff was “capable of presenting her own case”

where, “[i]n submissions to the court, she . . . demonstrated an ability to make arguments and

draft pleadings”).

In his Application, Plaintiff states that he needs a lawyer because he is “legally blind in

both eyes,” 77 years old, and a cancer patient. (See Application.) Although the Court has

sympathy for Plaintiff’s health issues, “the Court finds that Plaintiff has not met his burden to

demonstrate that his illness prevents him from effectively prosecuting his case.” Ahmad, 2020

WL 3972274, at *3; see also Thompson v. N.Y. State Corr. & Cmty. Supervision, No. 22-CV-

0289, 2022 WL 2164786, at *7 (N.D.N.Y. June 14, 2022) (denying pro se plaintiff’s request for

pro bono counsel where he was, inter alia, blind); Douglas v. Salotti, No. 15-CV-636, 2017 WL

1382094, at *1 (W.D.N.Y. Apr. 18, 2017) (denying appointment of counsel where the “plaintiff

has not demonstrated that his [medical issue] presents a permanent hindrance to him prosecuting

his case”); Thousand v. Wrest, No. 14-CV-6616, 2016 WL 3477242, *6 (W.D.N.Y. 2016)

(“[W]hile [the p]laintiff contends that his . . . impairment is a factor weighing in favor of

appointment of counsel, it does not appear that such impairment has hindered him.”); Walters v.

N.Y.C. Health Hospital Corp., No. 02-CV-751, 2002 WL 31681600, *2 (S.D.N.Y. 2002)

(“Although a plaintiff’s disability can support an application for counsel . . . here . . . it appears

. . . that any purported disability has not significantly hampered [the p]laintiff’s ability to

prosecute his case to date.”). If Plaintiff’s health issues “persist, the Court can then reconsider

whether appointment of counsel is necessary.” McCray, 2020 WL 4229907, at *2.

Plaintiff states in his Application that he has “written to several lawyers without getting a

reply.” (Application.) “While these efforts are commendable, this factor alone does not

outweigh the additional Hodge factors discussed above.” Simmons, 2018 WL 11258138, at *4;

see also Wright v. Condit, No. 13-CV-2849, 2015 WL 127866, at *2 (S.D.N.Y. Jan. 7, 2015)

(denying the plaintiff’s motion to appoint pro bono counsel despite the fact that he “ha[d] indeed

attempted to obtain the assistance of counsel . . . [and] ha[d] provided information indicating that

he ha[d] contacted a number of attorneys and legal service agencies”); see also Mena, 2013 WL

1165554, at *1 (finding that the plaintiff’s “search was certainly not an exhaustive one”).

Although the Court holds submissions from pro se parties “to less stringent standards

than formal pleadings drafted by lawyers” and provides such solicitude as “a function of their

necessary inexpertness in the law,” Hayes v. Dep’t of Educ., 20 F. Supp. 3d 438, 446 (S.D.N.Y.

2014) (internal quotation marks omitted), Plaintiff has not provided the Court with sufficient

grounds to determine that appointment of counsel would be more likely to lead to a just

determination in this case.

For the reasons stated above as well as the consideration that “[v]olunteer lawyer time is

a precious commodity,” Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989), Plaintiff’s

request for assignment of counsel is denied without prejudice. Plaintiff may renew his request

and provide the Court with additional information regarding any change of circumstances that

would support a renewed application, including when and if this case goes to trial. See Falls v.

Pitt, No. 16-CV-8863, 2022 WL 2162983, at *2 (S.D.N.Y. May 6, 2022) (“[T]he Court can

again consider appointing counsel if and when this case [] proceed[s] to trial.” (alterations in

original)). The Clerk is directed to terminate the pending Application, (Dkt. No. 80), and mail a

copy of this Order to Plaintiff.

SO ORDERED.

DATED: September 12, 2022

White Plains, New York

____________________________________

KENNETH M. KARAS

UNITED STATES DISTRICT JUDGE