Herbert v. SanFeliz

Background

Jeremiah Folsom Herbert, representing himself, sued Christina SanFeliz, Devinnie M. Depuy, and Christopher Fox under 42 U.S.C. § 1983. He alleges excessive force, invasion of bodily privacy, failure to train, negligence, deliberate indifference to medical needs, and unlawful searches. The court considered Herbert’s second application for assignment of volunteer legal counsel.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a court may request—not require or directly appoint—an attorney to represent a person who cannot afford counsel in a civil case. The court explained that such requests are discretionary and should be made sparingly because courts do not have funds to pay civil-case lawyers. The court applied factors including whether the claims appear likely to have substance, the person’s ability to investigate and present the case, the complexity of the legal issues, the need for cross-examination, and the person’s efforts to obtain counsel.

Court’s analysis

The court found that Herbert met the financial-need requirement because it had previously granted his request to proceed without paying the filing fee. For purposes of the application, the court also assumed that his claims had some likelihood of merit.

The court nevertheless concluded that the other factors weighed against requesting counsel. Herbert was personally present during the events underlying his claims, giving him direct knowledge of the relevant facts. The court found that his general lack of legal training did not justify counsel, and that his claims were not so complex or unusual that he could not handle them at that stage. The court also noted that Herbert had amended his pleadings twice, responded to defendants’ motions, sent letters to the court, and sought extensions, which demonstrated an ability to litigate the case himself.

Herbert stated that he had sent letters to at least two organizations seeking volunteer counsel. The court found that this showed a minimal effort, but not an exhaustive effort, and said that this effort did not overcome the other factors weighing against the request.

Ruling

Judge Kenneth M. Karas denied Herbert’s application without prejudice to renewal at later phases of the case if circumstances materially change. The clerk was directed to terminate the pending motion at Docket Number 132 and mail Herbert a copy of the order.