Booker v. NYS DOCCS ( 2024 )

DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC #: DATE FILED: 5/16/2024 DIQUAN BOOKER, Plaintiff, 22-CV-2355 (NSR) -against- ORDER SGT. SEFMAN, Defendant. NELSON S. ROMAN, United States District Judge: The Court is in receipt of the Application to Request Pro Bono Counsel from pro se Plaintiff Diquan Booker, dated May 13, 2024, requesting the appointment of pro bono counsel. (ECF No. 11.) For the reasons below, Plaintiff's request is DENIED without prejudice to renew at a later date. 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, and his ability to handle the case without assistance in the light of the required factual investigation, 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, Plaintiffs instant request for pro bono counsel cannot be granted at this stage in the proceeding. The parties submitted a fully briefed Motion for Summary Judgment on February 27, 2024. (See ECF Nos. 73-79). Plaintiff submitted supplemental documents on March 20, 2024 and April 3, 2024. (ECF Nos. 82, 84). The Court will duly consider such documents in light of the “special solicitude” afforded pro se litigants, whose submissions are to be “liberally construed.” Phipps v. Experian Information Solutions, LLC, 2023 WL 6215304, at *2 (S.D.N.Y. Sept. 23, 2023) (quoting Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006)). In other words, Plaintiff has proven himself capable of prosecuting this action throughout its proceedings. Therefore, being unable to determine whether any circumstances warrant the appointment of pro bono counsel at this early stage, the Court DENIES Plaintiff's motion without prejudice with leave to renew at a later stage in the proceedings. The Clerk of Court is directed to mail a copy of this Order to Plaintiff at his address as listed on ECF and show service on the docket. Dated: May 16, 2024 SO ORDERED: White Plains, New York 'NELSONS.ROMAN United States District Judge