Javier v. Russo

Order

The court granted Al Javier’s oral request for appointment of pro bono counsel. It directed the clerk to seek a volunteer lawyer to enter an appearance and represent Javier for all purposes through the remainder of the case.

Background

Javier had been granted permission to proceed without paying filing fees after the court determined that he was indigent. He asserted a claim under 42 U.S.C. § 1983, the federal law allowing certain civil-rights claims against state actors. He alleged that James Morrissey used excessive force by pepper-spraying him while he was compliant and in his cell at Green Haven Correctional Facility.

The court stated that it had previously dismissed Javier’s other claims. It found that the surviving excessive-force claim was likely to be substantial.

Reasoning

The court applied the factors from Hodge v. Police Officers for deciding whether to seek volunteer counsel for an indigent civil litigant. Those factors include the apparent strength of the claim, the person’s ability to investigate and present the case, the complexity of the legal issues, the likelihood that conflicting testimony will require cross-examination, and whether counsel would promote a fair resolution.

The court concluded that these factors favored seeking counsel. It described the case as presenting nuanced questions about whether the use of force was reasonable. It also found that Javier’s incarceration created meaningful challenges to preparing and presenting the case. In addition, the parties’ conflicting accounts of the incident and the importance of their credibility could make cross-examination central if the case went to trial.

Scope of representation

The court explained that it could request, but could not compel, a lawyer to volunteer in a civil case. It also stated that the court has no funds to retain counsel for civil matters. A volunteer lawyer could seek reimbursement for certain out-of-pocket expenses under the court’s Pro Bono Fund order. The representation would end when the lawyer filed a notice of completion, subject to the limits stated in the order.

Disposition and next steps

The clerk was directed to attempt to locate pro bono counsel. The court warned that a volunteer might not be found and that Javier should be prepared to proceed without an attorney. The court also stated that the next case-management conference was scheduled for March 25, 2025, and that the conference would be adjourned if counsel had not appeared by then.

Finally, the court certified that any appeal from this order would not be taken in good faith and denied permission to proceed without paying appellate fees for purposes of an appeal.