Placencia Jr. v. NYC/NYC DOC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

EDUARDO PLACENCIA JR.,

Plaintiff,

24 Civ. 7215 (KPF)

-v.-

ORDER

THE CITY OF NEW YORK, TYNEKA GREENE, REQUESTING PRO

MARK BALLAH, CHARLTON LEMON, and BONO COUNSEL

ERICA DIXON,

Defendants.

KATHERINE POLK FAILLA, District Judge:

In this case, Plaintiff brings a case against the City of New York and

individual officers, alleging that they violated his constitutional rights by

housing him in the same unit as detainees known to be from rival gangs and

returning him to the same unit after a fight broke out in the unit. (Dkt. #24).

Defendants answered Plaintiff’s Amended Complaint on July 25, 2025. The

Court seeks pro bono counsel assistance for upcoming discovery in the case.

LEGAL STANDARD

The in forma pauperis (“IFP”) statute provides that the courts “may

request an attorney to represent any person unable to afford counsel.” 28

U.S.C. § 1915(e)(1). Unlike in criminal cases, in civil cases, there is no

requirement that courts supply indigent litigants with counsel. See Hodge v.

Police Officers, 802 F.2d 58, 60 (2d Cir. 1986). Instead, the courts have “broad

discretion” in deciding whether to request the appointment of counsel. Id.

Even if a court does believe that a litigant should have a lawyer, under

the IFP 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. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 301-10 (1989). Moreover, courts

do not have funds to pay counsel in civil matters. Courts must therefore grant

applications for 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 set forth the factors a court should consider

in deciding whether to grant a litigant’s request for counsel. 802 F.2d at 61-

62. Of course, the litigant must first demonstrate that he or she is indigent,

see Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994), for

example, by successfully applying for leave to proceed IFP. The court must

then consider whether the litigant’s claim “seems likely to be of substance” —

“a requirement that must be taken seriously.” Hodge, 802 F.2d 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.

DISCUSSION

Plaintiff filed a Request to Proceed IFP, which the Court granted on

September 25, 2024. (See Dkt. #5). On February 3, 2025, Defendants

requested a pre-motion conference to discuss Defendants’ contemplated motion

to dismiss. (See Dkt. #15). After the pre-motion conference, Plaintiff filed an

Amended Complaint on May 7, 2025. (See Dkt. #24). On July 25, 2025,

Defendants declined to file their contemplated motion to dismiss and instead

answered the Amended Complaint. (See Dkt. #29). It appears that Plaintiff’s

financial status has not changed, and Plaintiff therefore qualifies as indigent.

In his Amended Complaint, Plaintiff asserts claims under 42 U.S.C. §

1983, alleging, inter alia, failure to protect, unconstitutional conditions of

confinement, deliberate indifference to safety, and improper searches and

seizures. In particular, Plaintiff alleges, inter alia, that Defendants placed

members of rival gangs in the same housing unit on Rikers Island, causing a

fight to break out during which Plaintiff was injured. Plaintiff further alleges

that Defendants then placed the rival gang members back in the same housing

unit after the fight broke out. As a result, an additional riot broke out, but

Plaintiff was kept in the same housing unit with the same inmates. Plaintiff

also alleges that his sink was removed from the wall such that he had to drink

and bathe from the toilet.

The Court finds that certain of Plaintiff’s claims are “likely to be of

substance.” Hodge, 802 F.2d at 61. Plaintiff’s Amended Complaint includes

detailed allegations of potential constitutional violations. (See Dkt. #24). This

is evidenced by Defendants’ decision to answer Plaintiff’s Amended Complaint

as opposed to moving to dismiss it right away. (See Dkt. #25, 29). At

minimum, discovery will make clearer the substance behind Plaintiff’s claims.

The Court similarly finds that the other Hodge factors weigh in favor of

granting Plaintiff’s application. Plaintiff is still incarcerated. But he is no

longer at the facility where he alleges that the incidents in the Amended

Complaint took place. As a result, he may struggle “to investigate the crucial

facts” of the case. Hodge, 802 F.2d at 61; cf. Hendricks, 114 F.3d at 394

(noting that Plaintiff “has been incarcerated . . . , severely limiting his ability to

investigate and present the crucial facts”). The events appear to be contested

(see Dkt. #29), implicating the need for cross-examination, Hodge, 802 F.2d at

61-62. As this case enters discovery, counsel would facilitate Plaintiff’s “ability

to present the case.” Id. at 62. And finally, some of the legal issues in the case

are moderately “complex[].” Id. at 62. The case implicates not only various

constitutional provisions, but also — among Defendants’ eleven defenses —

governmental immunity and the Prison Litigation Reform Act. (See Dkt. #29).

The totality of these circumstances indicate that representation would

“lead to a quicker and more just result by sharpening the issues and shaping

examination.” Hodge, 802 F.2d at 61 (citing Ulmer v. Chancellor, 691 F.2d 209,

213 (5th Cir. 1982)).

CONCLUSION

For the foregoing reasons, the Court requests either all-purpose or

limited-purpose representation for Plaintiff in this case. The limited-purpose

representation would relate to discovery, which is set to begin. To give

prospective counsel opportunity to consider this representation, the Court will

defer entry of a Case Management Plan for thirty days.

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, some 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. Of course, if an attorney

offers to take the case, it is entirely Plaintiff’s decision whether to retain that

attorney or not. The Court has established a Pro Bono Fund to encourage

greater attorney representation of pro se litigants. 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 of copy of this Order to Plaintiff at

his address of record.

SO ORDERED.

Dated: August 27, 2025

New York, New York

KATHERINE POLK FAILLA

United States District Judge