Minus v. New York City Police Department
- Jesse Furman
- 1:17-cv-04623
- U.S. District Court · Southern District of New York
- 5
In Minus v. Benvenuto, Judge Furman directed the clerk to seek volunteer counsel for Minus’s remaining strip-search claim.
Omar Minus, whose remaining strip-search claim proceeds with the clerk directed to seek volunteer counsel; Officers Brian Benvenuto and Joseph Tennariello remain defendants.
What happened
In Minus v. New York City Police Department, Omar Minus brought civil-rights claims against two New York Police Department officers concerning a traffic stop, arrest, and strip search. The court had already dismissed several claims, leaving the claim that the officers unlawfully strip-searched him while he was in custody.
The court found that the remaining claim was likely substantial because the strip search allegedly occurred after a misdemeanor arrest, based mainly on a supervisor’s knowledge that Minus was a “known drug dealer.” The court also found that Minus’s limited experience and difficulty investigating important facts supported seeking a volunteer lawyer for settlement discussions and, if necessary, trial.
Judge Jesse M. Furman directed the clerk to seek pro bono counsel, meaning a volunteer lawyer, but explained that the court could not guarantee that a lawyer would accept the case. The court also denied in forma pauperis status for any appeal from this order.
The detailed version
- Minus v. New York City Police Department · No. 1:17-cv-04623
- Jesse Furman
- Dec. 4, 2019
Background
Omar Minus asserted several claims under 42 U.S.C. § 1983 against Officer Brian Benvenuto and Officer Joseph Tennariello concerning an April 29, 2015 traffic stop and subsequent arrest. The court had granted Minus permission to proceed without paying filing fees, finding that he was unable to afford those fees. The court had also dismissed several claims in an earlier opinion and order.
The remaining claim alleged that Benvenuto and Tennariello unlawfully strip-searched Minus while he was in custody at the 6th Precinct of the New York City Police Department. The court relied on uncontested facts in the defendants’ filings stating that officers arrested Minus for a misdemeanor traffic violation, took him to the precinct, and strip-searched him at a supervising officer’s direction. The stated basis was little or nothing more than the supervisor’s knowledge that Minus was a “known drug dealer.”
Legal standard
Under 28 U.S.C. § 1915(e)(1), a court may ask a lawyer to volunteer to represent a person who cannot afford counsel in a civil case. The court cannot require a lawyer to accept the representation or use public funds to pay the lawyer. The Second Circuit’s standard requires the claim to appear likely to have substance before the court considers additional factors, including the person’s ability to investigate facts, the importance of cross-examination, the person’s ability to present the case, the complexity of the legal issues, and whether counsel would likely produce a fairer result.
Court’s analysis
The court concluded that Minus’s strip-search claim was “likely to be of substance.” It cited Second Circuit precedent requiring individualized reasonable suspicion before strip-searching a person arrested for a misdemeanor and determined that Minus appeared to have some chance of success.
The court also found that the other factors favored seeking counsel. It noted that Minus was a former inmate with little legal or professional experience and had shown during discovery that he could not thoroughly investigate important facts. The court had separately referred the matter to the assigned magistrate judge for settlement purposes and concluded that counsel could help clarify the issues, conduct negotiations, and present the case at trial.
Order and practical effect
The court directed the clerk to attempt to locate pro bono counsel for Minus for settlement and trial. A volunteer lawyer could agree to represent Minus only for settlement, in which case the representation would generally end when settlement was completed, or for both settlement and trial, in which case the lawyer would handle all aspects of the representation described in the order. The court stated that settlement-only counsel would not be required to respond to a later dispositive motion unless the scope of the representation was expanded.
The court warned that there was no guarantee a volunteer lawyer would accept the case and that Minus should be prepared to continue without a lawyer. It also certified that an appeal from this order would not be taken in good faith and denied permission to proceed without paying fees for such an appeal. The order did not decide whether the strip-search claim ultimately succeeds.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.