Opinion
02 Civ. 6240 (KMW) (DF).
May 10, 2007
MEMORANDUM AND ORDER
As this Section 1983 case heads to trial, Plaintiff Eugene C. Smith ("Plaintiff"), proceeding pro se, has renewed his request for the Court to "assign" counsel to represent him. Although the Court cannot "assign" counsel in a civil case, the Court can, in the interest of justice, request pro bono counsel to represent an indigent party, and, to that extent, Plaintiff's renewed application is granted, for the reasons discussed below.
BACKGROUND
Plaintiff commenced this action in June 2002, alleging that the use of the police dog in connection with his arrest constituted an unconstitutional use of excessive force. ( See Complaint, dated June 24, 2002 (Dkt. 2).) After initial motion practice, which resulted in the dismissal of Plaintiff's claims against a number of police officers and others who were only tangentially involved in the alleged use of force, the Court permitted Smith to amend his Complaint to assert claims instead against defendant Edward Potanovic, who was the handler of the police dog. ( See Order, dated Mar. 31, 2005, granting leave to amend (Dkt. 42); Amended Complaint, dated October 8, 2004 (Dkt. 43).) At the time the Court permitted the amendment, it also denied, without prejudice, Plaintiff's application for the Court to request counsel. ( See Dkt. 42.) At the time, the Court (Wood, J.) reasoned that "Plaintiff's case against Defendant Potanovic involves a dispute about the events of November 28, 2000, and does not raise any complicated legal issues that Plaintiff has not already handled in the instant action." ( Id. at 5.) The Court, however, granted Plaintiff "leave to apply to the Court for a request for counsel in the future, if circumstances change." ( Id.)
On February 7, 2006, Defendant Potanovic moved for summary judgment on the claims against him. (Dkt. 57.) Upon this Court's Report and Recommendation, dated January 23, 2007 (Dkt. 63), Judge Wood granted that motion in part and denied it in part, finding a triable issue as to whether Defendant had engaged in an unconstitutional use of force by failing to recall the police dog, once force was no longer required ( see Order dated Mar. 27, 2007, as modified, Mar. 30, 2007 (Dkt. 67).) This case is now trial-ready with respect to that issue.
By letter dated April 16, 2007, Plaintiff renewed his application for counsel, declaring, under penalty of perjury, that he "ha[d] had no luck in trying to hire an attorney over the past few days, weeks and months," and stating that he lacks "the ability to represent [him]self in trial proceedings." (Dkt. 68.) At this point, with discovery complete and the issues in the case narrowed for trial, the only question before this Court is whether the fact that the case is now proceeding to trial constitutes a sufficient "changed circumstance" to warrant a request for pro bono counsel at this time. The Court concludes that it does, and that a judicial request for trial counsel would now be appropriate to aid in a fair resolution of the case.
DISCUSSION
Unlike criminal defendants, prisoners and indigents filing civil actions have no constitutional right to counsel. Under 28 U.S.C. § 1915(e)(1), however, the Court may request an attorney to represent any person unable to afford counsel. In this case, Plaintiff has already demonstrated that he is unable to afford counsel; his application to proceed in forma pauperis was granted on August 2, 2002. ( See Dkt. 1.)
"In deciding whether to appoint counsel, . . . [a] district [court] should first determine whether the indigent's position seems likely to be of substance." Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (quoting Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)). In order to make such a determination, the Court must decide whether, "from the face of the pleading[s]," Stewart v. McMikens, 677 F. Supp. 226, 228 (S.D.N.Y. 1988), the claims asserted by the plaintiff "may have merit," or the plaintiff "appears to have some chance of success." Baskerville v. Goord, No. 97 Civ. 6413 (BSJ) (KNF), 2001 WL 527479, at *1 (S.D.N.Y. May 16, 2001) (quotation marks and citations omitted); see also Hodge, 802 F.2d at 60-61. While the Court should not appoint counsel "indiscriminately" just because an indigent litigant makes such a request, it is not necessary for the plaintiff to demonstrate that his claims will survive a motion to dismiss or a motion for summary judgment; rather, the Court must only find that the claims satisfy a "threshold showing of merit." Hendricks, 114 F.3d at 393-94.
Here, although several of Plaintiff's claims have been dismissed as without merit, his excessive force claim against Defendant Potanovic has now survived challenge and will need to be resolved at trial. For the reasons discussed in this Court's January 23 Report and Recommendation ( see Dkt. 63 at 14), it appears that this claim has at least "some chance of success." Thus, the Court finds that Plaintiff has satisfied the requirement that he make a "threshold showing of merit." See Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 174 (2d Cir. 1989).
Where a plaintiff satisfies the threshold requirement of demonstrating that his position is likely to be of substance, the Court should then consider: (1) the indigent's ability to investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact-finder; (3) the indigent's ability to present the case; (4) the complexity of the legal issues; and (5) any special reason in the case why appointment of counsel would be more likely to lead to a just determination. See Hodge, 802 F.2d at 61-62; see also Hendricks, 114 F.3d at 394-95 (citing Hodge). The Court should also consider whether the plaintiff has attempted to obtain a lawyer, and whether a lawyer is available to assist the plaintiff. See Cooper, 877 F.2d at 172.
It appears that, in this case, there are no facts that will require significant investigation, as the issues are quite narrow and the facts relevant to those issues are already well known to both parties. Nor can it be said, as noted by Judge Wood, that the legal issues that remain in this case are especially complex. Nonetheless, the Court notes that Plaintiff's ability to prepare for trial may be limited by the fact of his incarceration. Cf. Hendricks, 114 F.3d at 394 (finding that the plaintiff's incarceration "severely limited" his ability to investigate and present facts relevant to his claims). More importantly, it is likely that cross-examination will be crucial in this case, as Plaintiff and Defendant have provided sharply conflicting accounts of what transpired with respect to the use of the police dog during Plaintiff's arrest. Although Plaintiff has demonstrated that, in written submissions to the Court, he is capable of articulating his positions, he may be less able to present his case at trial, where the parties' credibility as to conflicting evidence will be the focal point. The need for effective cross-examination at the trial of this action militates strongly in favor of requesting pro bono counsel for Petitioner at this juncture. Finally, although Plaintiff has submitted no documentation to support his assertion that he has tried to secure counsel on his own, he has at least stated, under penalty of perjury, that he has recently made — and been unsuccessful in — such efforts.
In light of the fact that this case is now heading to trial, and particularly because conflicting evidence implicating the need for cross-examination will be the major proof presented at trial, the Court finds that it would be reasonable and appropriate to grant Plaintiff's renewed motion for counsel, to the extent the motion may be construed as an application for the Court to request pro bono counsel to represent Plaintiff at trial.
CONCLUSION
For all of the above reasons, the Court construes Plaintiff's April 2006 application for the "assign[ment]" of an attorney as an application for the Court to "request" trial counsel for him, and, as so construed, the application is granted. The Pro Se Office for this judicial district is therefore directed to request pro bono counsel for Plaintiff, in accordance with the pro bono panel's procedures.
SO ORDERED