The Board of Managers of the Diocesan Missionary Society of the Protestant…

Background

The Board of Managers of the Diocesan Missionary Society of the Protestant Episcopal Church in the Diocese of New York brought claims against Colonnelli Brothers, Inc., other defendants, and Charles McCartney. The claims seek recovery under federal environmental and declaratory-judgment statutes for equitable indemnity and restitution, as well as claims for trespass, nuisance, and costs related to contamination at the plaintiff’s property.

McCartney was served with the complaint and received an extension of time to answer. Instead of filing an answer, he applied for appointment of pro bono counsel, meaning a volunteer lawyer. He said he was financially unable to obtain representation, relied primarily on Social Security benefits, was retired, worked part time performing manual labor, and could not afford attorneys who had requested $25,000.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a court may request—not require—an attorney to represent a person who cannot afford counsel in a civil case. The court has broad discretion, and volunteer counsel must be requested sparingly. Under the factors identified by the Court of Appeals for the Second Circuit in Hodge v. Police Officers, the applicant must first show indigence, meaning inability to afford counsel. The court may then consider whether the claims appear likely to have substance and factors such as the applicant’s ability to investigate and present the case, the complexity of the legal issues, the need for cross-examination, and efforts to obtain counsel.

Court’s analysis

The court held that McCartney did not meet the threshold requirement of showing indigence. His application stated that he was attaching an original application to proceed without paying filing fees showing his financial status, but no such application was attached or filed. McCartney also provided no information about his income, savings, or assets and no other evidence of financial need.

Because McCartney had not shown that he met the threshold requirements, the court did not address the remaining factors for requesting volunteer counsel.

Disposition

The court denied McCartney’s application without prejudice. The clerk was directed to terminate the motion at Docket Number 34. The order did not resolve the underlying claims concerning contamination, indemnity, restitution, trespass, nuisance, or costs.