The opinion
DOCUMENT
UNITED STATES DISTRICT COURT ELECTRONICALLY FILED
SOUTHERN DISTRICT OF NEW YORK DOC #:
DATE FILED: _»/09/2024
CARL BROWN,
Plaintiff,
19-CV-2296 (NSR)
-against-
ORDER
ANNUCI, et al.
Defendants.
NELSON S. ROMAN, United States District Judge:
The Court is in receipt of Letters dated April 23 and May 1, 2024 from pro se Plaintiff Carl
Brown requesting he be mailed a copy of his Fourth Amended Complaint, an extension of time to
oppose the remaining Defendants’ Motion to Dismiss, the appointment of pro bono counsel. (ECF
Nos. 246. 248.) For the reasons below, Plaintiffs request is DENIED, in part, and GRANTED, in
part.
Unlike in criminal proceedings, the Court does not have the power to obligate attorneys to
represent indigent pro se litigants in civil cases. See Mallard v. U.S. Dist. Court for the S. Dist. of
Towa, 490 U.S. 296, 308-09 (1989). Instead, pursuant to 28 U.S.C. § 1915(e)(1), the Court may,
at its discretion, order that the Pro Se Office request an attorney to represent an indigent litigant
by placing the matter on a list circulated to attorneys who are members of the Court’s pro bono
panel. See Palacio v. City of New York, 489 F. Supp. 2d 335, 344 (S.D.N.Y. 2007).
The Second Circuit set forth the standards governing the appointment of counsel in pro se
cases in Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997), Cooper v. A. Sargenti Co., 877
F.2d 170, 172 (2d Cir. 1989), and Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986).
These cases direct the district courts to “first determine whether the indigent’s position seems
likely to be of substance,” Hodge, 802 F.2d at 61, and then, if this threshold is met, to consider
“secondary criteria,” including the pro se litigant’s “ability to obtain representation independently,
the complexity of the legal issues, and the need for expertly conducted cross-examination to test
veracity.” Cooper, 877 F.2d at 172; accord Hendricks, 114 F.3d at 392 (quoting Hodge, 802 F.2d
at 61–62). “Even where the claim is not frivolous, counsel is often unwarranted where the
indigent’s chances of success are extremely slim,” and the Court should determine whether the pro
se litigant’s “position seems likely to be of substance,” or shows “some chance of success.”
Hodge, 802 F.2d at 60–61.
With that in mind, Plaintiff’s instant request for pro bono counsel cannot be granted at this
stage of the litigation. The Defendants in this matter have been granted leave to file a motion to
dismiss. (ECF No. 243). Plaintiff’s prior pro bono counsel assisted in drafting a well-organized
fourth amended complaint with numerous exhibits attached in support. (ECF No. 183). This fourth
amended complaint obviates the need for Plaintiff to perform an factual investigation at this stage
and, similarly, cross-examination is of no moment for a motion to dismiss. While Plaintiff’s
incarceration is not helpful to obtaining representation, Plaintiff was able to engage his prior pro
bono counsel while detained. Finally, his claims are of a type that numerous other pro se plaintiffs
prosecute throughout this District every day. Moreover, Plaintiff is in a better position than his pro
se peers given the assistance provided by his prior pro bono counsel in drafting his fourth amended
complaint.
Accordingly, the Court DENIES Plaintiff’s motion without prejudice with leave to renew
at a later stage in the proceedings.
Plaintiff’s request for an extension of time to oppose Defendants’ Motion to Dismiss is
GRANTED. Plaintiff is directed to serve his opposition on the Defendants on or before May 31,
2024. Defendants are directed to serve their reply, and to file all of the parties’ papers on the
docket, on June 17, 2024.
Further, Plaintiffs request to be mailed a copy of his fourth amended complaint is
GRANTED. The Clerk of Court is respectfully directed to mail a copy of Plaintiffs fourth
amended complaint along with a copy of this Order to Plaintiff at Shawangunk Correctional
Facility, P.O. Box 700, Wallkill, New York 12589.
Dated: May 9, 2024 SO ORDERED:
White Plains, New York
NELSON S. ROMAN
United States District Judge