Brown v. O'Neill

USDC SDNY

DOCUMENT

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED

SOUTHERN DISTRICT OF NEW YORK DOC #:

Sonnac nnnnns IK DATE FILED:_ 7/14/2023

ROBKIEM BROWN and HASSAN BOUCHET, :

Plaintiffs, :

: 19-cv-03375 (LJL)

-v- :

: MEMORANDUM &

POLICE OFFICER ADEKUNDLE LONGE, : ORDER

Defendant. :

we KX

LEWIS J. LIMAN, United States District Judge:

On July 14, 2023, the Court issued an opinion and order granting in part and denying in

part the City of New York, former Police Commissioner James P. O’Neill, and Police Officer

Adekunle Longe’s motion for summary judgment on the claims of Robkiem Brown and Hassan

Bouchet (“Plaintiffs”). Dkt. No. 78. In connection with their arrests on August 31, 2016,

Plaintiffs brought claims for false arrest, false imprisonment, malicious prosecution, unlawful

search and seizure, and unlawful discrimination. /d. The Court denied the motion for summary

judgment with respect to Plaintiffs’ search-and-seizure claim that they were unlawfully arrested

without a warrant. /d. at 14. The Court held that there is a disputed issue of fact as whether

Plaintiffs were in their home at the time of their arrests and therefore a warrant was required. Jd.

The Court also held that there was a triable issue of fact as to whether Officer Longe was entitled

to qualified immunity for the unlawful search and seizure claim. /d. at 20-22. The Court,

however, granted summary judgment as to all claims against former Commissioner O’Neill and

the City of New York and all remaining claims against Officer Longe. Jd. at 20-24.

On April 13, 2023, after the motion for summary judgment was fully briefed, Plaintiffs

filed a letter requesting the appointment of pro bono counsel. Dkt. No. 66.

For the following reasons, Plaintiffs’ motion is GRANTED in part.

The courts “may request an attorney to represent any person unable to afford counsel.”

28 U.S.C. § 1915(e)(1). Unlike 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. /d. Even if a court does believe that a litigant should have a

free lawyer, it 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 US. 296, 301-10 (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. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir. 1989).

In Hodge, the Circuit 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. Of course, 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”—“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.; see also Cooper, 877 F.2d at 172 (listing factors courts should consider, including litigant’s

efforts to obtain counsel). 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.

Plaintiffs have met these factors. Plaintiffs’ representations indicate that they are

indigent. They state that they have tried for several years to obtain a lawyer, but have been

unable to as most attorneys want payment or demand certain fees. Dkt. No. 77 at ECF p. 2.

Moreover, given that the Court has held that Plaintiffs’ unlawful search-and-seizure claim

against Officer Longe survives summary judgment and should proceed to trial, the Court

concludes that this remaining claim is likely to be of substance. See Genao v. City of New York,

2023 WL 4080549, at *2 (S.D.N.Y. June 20, 2023). Plaintiffs are also likely to encounter

difficulties in litigating this case on their own. If this case proceeds to trial, they will have to

cross examine police officers concerning the details of their arrest and otherwise present

evidence to a jury. See Layne v. Panzarella, 2022 WL 7578885, at *2 (S.D.N.Y. Sept. 26, 2022).

Plaintiffs also appear to have very little familiarity with, or understanding of, the law.

“Therefore, the Court concludes that, in this case, representation would ‘lead to a quicker and

more just result by sharpening the issues and shaping examination.’” Id. (quoting Hodge, 802

F.2d at 61).

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

pro bono counsel to represent Plaintiffs in all remaining aspects of this action in the district

court, including settlement, any remaining discovery, and at trial (if the case gets that far). If

located, counsel will file a Notice of Appearance as Pro Bono Counsel.

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 plaintiff's case. The Pro Bono Fund is

especially intended for attorneys for whom pro bono service is a financial hardship. See

https://nysd.uscourts.gov/forms/pro-bono-fund-order.

The Court advises Plaintiffs 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 Plaintiffs. If an attorney volunteers, the attorney will

contact Plaintiffs directly to determine if each party (Plaintiffs and counsel) desire to go forward

with the representation. There is no requirement on the part of Plaintiffs to retain the counsel

who has volunteered. In identifying counsel to assist with the case, the Clerk of Court makes no

representation with respect to the time and resources such counsel will be able to devote to the

case. By the same token, however, there is no guarantee that the attorney who volunteers will

decide to take the case even if an attorney agrees to contact Plaintiffs for the purpose of

discussing potential representation or that, if Plaintiffs choose not to retain an attorney who

volunteers, that any other attorney would be willing to volunteer. Therefore, Plaintiffs should be

prepared to proceed with the case without an attorney.

A status conference will be held telephonically on September 6, 2023 at 3:00 p.m. That

extended date is set in order to afford the Clerk of Court enough time to locate counsel and for

that counsel to consult with Plaintiffs. The parties should call into the Court’s dedicated

conference line at (888) 251-2909 and enter Access Code 2123101.

SO ORDERED.

eo i

Dated: July 14, 2023 MO a.

New York, New York LEWIS J. LIMAN

United States District Judge