Fabricio v. Lee

Background

Ederick Fabricio requested a volunteer lawyer for trial. The court had granted his applications to proceed without paying court fees, later vacated one grant after he paid the full filing fee, and then granted his application again. The court therefore found that he qualified as unable to afford counsel.

The order concerned a civil case in which Fabricio’s amended complaint asserted claims under the First, Eighth, and Fourteenth Amendments against 28 defendants. The opinion states that, after an earlier partial dismissal ruling, the remaining claims were:

- excessive-force claims against Sgt. Miller, C.O. Chase, C.O. Erns, C.O. Carlson, C.O. Corey, C.O. Phillips, C.O. Brokaw, and C.O. Lorde-Gray; and - failure-to-intervene claims against Sgt. Miller, C.O. Phillips, C.O. Brokaw, and C.O. Lorde-Gray.

At a December 20, 2019, conference, defense counsel said that the defendants did not intend to seek summary judgment.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a court may ask a lawyer to represent a person who cannot afford counsel in a civil case. The court cannot require a lawyer to take the case or pay the lawyer’s fees. The Second Circuit’s standard requires the court first to consider indigence and whether the claims appear likely to have substance. If those requirements are met, the court also considers factors such as the person’s ability to investigate important facts, whether witness questioning will be important, the person’s ability to present the case, the complexity of the legal issues, and whether representation would likely produce a fairer result.

Court’s analysis

The court found that Fabricio’s claims were “likely to be of substance.” It also found that the other factors favored representation, including Fabricio’s ability to investigate important facts, the likely need to question witnesses at trial, and the complexity of the legal issues. The court concluded that a lawyer could help produce a quicker and fairer result by sharpening the issues and structuring the questioning of witnesses.

Ruling and case status

The court granted Fabricio’s request by directing the Clerk of Court to seek volunteer counsel for the limited purpose of trial. It did not appoint a specific lawyer. The order warned that volunteer counsel might not be found, that the case would continue at its normal pace, and that Fabricio should be prepared to proceed without a lawyer. If a lawyer volunteered, Fabricio could decide whether to retain that lawyer.

The court adjourned the January 30, 2020, conference to April 3, 2020, terminated motion 142, and directed that a copy of the order be mailed to Fabricio. It also certified that an appeal from the order would not be taken in good faith and denied fee-waiver status for purposes of an appeal.