Herbert v. George
- Philip Halpern
- 7:24-cv-01780
- U.S. District Court · Southern District of New York
- 3
In Herbert v. George, Judge Halpern denied Herbert’s request for volunteer counsel, allowing him to renew it later.
Jeremiah Folsom Herbert, the self-represented plaintiff seeking volunteer counsel.
What happened
In Herbert v. George, Jeremiah Folsom Herbert, who is representing himself, asked the court to request a volunteer lawyer for him. He said he lacked legal knowledge, the case was complex, and he needed discovery from the defendants.
The court noted that the case was still at an early stage and that the defendants’ motion to dismiss had not yet been decided. It found no indication that Herbert’s position was likely to have legal merit or that the issues were unusually complex, and it could not determine that he was unable to proceed without help.
Judge Halpern denied the request without prejudice, meaning Herbert may renew it later. The court also ruled that an appeal would not be taken in good faith and denied Herbert permission to appeal without paying the filing fees.
The detailed version
- Herbert v. George · No. 7:24-cv-01780
- Philip Halpern
- Jan. 22, 2025
Background
Jeremiah Folsom Herbert, proceeding without a lawyer, applied for the court to request volunteer counsel under 28 U.S.C. § 1915(e)(1). He stated that he lacked legal knowledge, that the case was complex, and that he sought discovery from the defendants.
The court explained that, unlike in criminal cases, it generally cannot require an attorney to represent an indigent person in a civil case. It may, however, ask its pro bono panel—attorneys who volunteer for civil cases—to consider representing the person. The court must first assess whether the person’s position appears likely to have legal merit. If that threshold is met, the court may consider additional factors, including whether the person can obtain a lawyer independently, whether the person can handle the case without assistance, the factual investigation required, the complexity of the legal issues, and whether professional cross-examination may be needed.
Court’s Analysis
The action was still in its early stages. The defendants had filed a motion to dismiss the complaint on October 25, 2024, and Herbert had opposed that motion, but the court had not yet decided it. The court found no indication at that point that Herbert’s position appeared likely to have legal merit or that the case involved especially complex issues requiring volunteer counsel. The court also could not determine that Herbert was unable to handle the case without assistance, while noting that this assessment could change as the case continued.
The court further explained that even if a later request were granted, no funds would be available to retain counsel in this civil case. The court would rely on volunteers, and no volunteer attorney would be guaranteed to accept the case.
Disposition
The court denied Herbert’s application to request counsel. It stated that the denial was without prejudice to Herbert’s renewing the application later in the case. The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied permission to appeal without paying the filing fees. Defense counsel was instructed to mail Herbert a copy of the order and file proof of service, and the clerk was directed to terminate the motion listed at Document 39.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.