Herbert v. SanFeliz

Background

Jeremiah Folsom Herbert, proceeding without a lawyer, brings an action under 42 U.S.C. § 1983 against Christina SanFeliz, Devinnie M. Depuy, and Christopher Fox. He alleges excessive force, invasion of bodily privacy, failure to train, negligence, deliberate indifference to medical needs, and unlawful searches. Herbert’s core allegations concern his arrest while present during the execution of a search warrant and allegedly humiliating search procedures during his arrest and incarceration.

The issue before the court was Herbert’s third application for assignment of pro bono counsel. The order addressed only whether the court should request that a volunteer lawyer represent Herbert; it did not decide the merits of his underlying claims.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a court may request a volunteer lawyer for a person who cannot afford counsel. In a civil case, the court is not required to provide a lawyer and cannot compel an attorney to serve. Because volunteer legal assistance is limited, courts request it sparingly.

The court applied factors from Hodge v. Police Officers. First, the litigant must show indigency and that the claims appear likely to have substance. If those requirements are met, the court considers factors including the litigant’s ability to investigate the facts, the need for cross-examination, the ability to present the case, the complexity of the legal issues, and whether special circumstances make counsel more likely to produce a fair result. The Second Circuit also requires a civil litigant to show that he or she made a reasonably diligent effort to obtain counsel before a request for court-requested counsel will be considered.

Analysis

The court found that Herbert satisfied the indigency requirement because it had granted his request to proceed without paying the usual court fees. For purposes of this application, the court also assumed that his claims had some likelihood of merit.

The court nevertheless found that Herbert’s failure to identify any efforts to find a volunteer lawyer weighed against his application. It also concluded that Herbert had personal knowledge of the events underlying his claims because they occurred in his presence. The court therefore determined that a lawyer would likely not be needed to investigate additional facts.

The court rejected Herbert’s general statements that he had limited legal knowledge and was disadvantaged against defense counsel. It found that his claims were not too complex for him to handle at this stage. His amended pleadings, responses to motions, letters to the court, requests for extensions, discovery motion, and legal research demonstrated an ability to present and pursue his case. The court also noted that Herbert had already used written discovery to seek information about witnesses, reports, alleged prior misuse of force, and medical and mental-health records.

Finally, the court rejected Herbert’s argument that a non-jury trial required counsel because it would demand greater skill. The court stated that, in a non-jury trial, the judge serves as both fact finder and legal decision maker and must give a self-represented plaintiff procedural leeway.

Disposition

The court denied Herbert’s third application for pro bono counsel without prejudice to renewal at later stages of the action if circumstances materially change. The Clerk was directed to terminate the motion at Docket Number 135 and mail Herbert a copy of the order.