Smolen v. Nevins
- Philip Halpern
- 7:17-cv-07494
- U.S. District Court · Southern District of New York
- 3
In Smolen v. Nevins, Judge McCarthy denied Samuel Smolen’s request for appointed counsel, allowing renewal if circumstances change.
Samuel J. Smolen’s request for appointed counsel was denied, but he may renew the request if circumstances change; the underlying procedural due process claim was not decided in this order.
What happened
In Smolen v. Nevins, Samuel J. Smolen asked the court to appoint a lawyer to help him pursue his remaining procedural due process claim. He said difficulties caused by the State and his legal blindness had made it harder to prosecute the case.
The court found that Smolen could not afford a lawyer and that his remaining claim might have merit. But the court also found that the case was not complex, that Smolen had shown he could represent himself, and that he had received the visual aids he needed.
Judge Judith C. McCarthy denied the application for appointed counsel, with leave to renew if circumstances change, and directed the clerk to terminate the pending application.
The detailed version
- Smolen v. Nevins · No. 7:17-cv-07494
- Philip Halpern
- Dec. 3, 2019
Background
Samuel J. Smolen submitted a second application asking the court to appoint counsel in his civil case against the listed defendants. His first request had been denied on August 14, 2018. In his later submissions, Smolen argued that difficulties he had experienced involving the State had hindered his ability to prosecute the case. He also pointed to his legal blindness and his earlier lack of visual aids.
The court noted that Smolen had been allowed to proceed without paying court fees, which showed that he could not afford counsel. The court also relied on an earlier order denying part of a motion to dismiss. That earlier order left one procedural due process claim, which the court said might have merit. The present order did not decide that claim.
Legal standard
In a civil case, a person who cannot afford a lawyer has no constitutional right to appointed counsel. Under 28 U.S.C. § 1915(e)(1), however, the court may ask a lawyer to represent someone unable to afford counsel. The court first considers whether the person can afford counsel and whether the claims appear likely to have substance. If those conditions are met, the court may consider factors such as the case’s factual and legal complexity, the person’s ability to proceed without a lawyer, and whether appointing counsel would more likely produce a fair resolution.
Ruling
After reviewing the record, including Smolen’s earlier application, Judge Judith C. McCarthy determined that appointing counsel was not justified at that time. The court found no complex issues, concluded that Smolen had demonstrated an ability to represent himself, and found that his submissions did not provide enough facts to show that legal blindness had substantially limited his ability to prosecute the case. The court also noted Smolen’s acknowledgment that he had received all recommended visual aids and was in a better position to prosecute his claim.
The court denied Smolen’s application for appointment of counsel, with leave to renew if circumstances change. It also requested that the clerk terminate the pending application.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.