The opinion
| DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT DOC #
SOUTHERN DISTRICT OF NEW YORK DATE FILED: 06/25/2024
GUADALUPEBURGARA, 24-CV-3493 (JHR) (RWL)
Plaintiff, . ORDER
- against - :
JEWISH BOARD, :
Defendant.
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiff filed this case pro se, received approval to proceed in forma pauperis
(“IFP”), and now requests appointment of pro bono counsel. (Dkt. 16.) The request is
DENIED without prejudice to a future application.
The in forma pauperis statute provides that the courts “may request an attorney to
represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). In civil cases,
unlike in criminal 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, under
the in forma pauperis statute, a court 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 lowa, 490 U.S. 296, 301-310 (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 for those litigants whose causes are truly
deserving. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir. 1989).
In Hodge, the Second Circuit Court of Appeals 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. 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.
Here, Plaintiff claims to have a “Chain 1 Malformation” and a “learning
disability/dyslexia.” Plaintiff alleges that Defendant violated the Americans with
Disabilities Act of 1990 and the New York City Human Rights Law by “writing [Plaintiff] up”
for taking a day off for her medical condition and retaliating against Plaintiff after Plaintiff
complained. Plaintiff asserts that Plaintiff’s supervisor became more “aggressive” after
Plaintiff “disagreed” with the supervisor. Plaintiff also refers to difficulties in obtaining a
“permit” during Plaintiff’s “previous employment.” Plaintiff seeks damages as
compensation for having lost two weeks of pay for being terminated “early” and then being
without a job for two months.
The Court concludes that the allegations of the complaint state a claim that “seems
likely to be of substance.” Accordingly, the Court finds that the requirements for
appointment of pro bono counsel have not been met. The Court denies the application
without prejudice, however, in the event that later developments in the case warrant
appointment.
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 respectfully directed to terminate the application at Dkt. 16
and to mail a copy of this order to Plaintiff.
SO ORDERED.
ROBERT W.LEHRBURGERt#™”
UNITED STATES MAGISTRATE JUDGE
Dated: June 25, 2024
New York, NY 10007