Livingston v. Doe

Background

Clarence Livingston, an incarcerated person representing himself, brought this action under 42 U.S.C. § 1983. He alleges that an unknown detective arrested him on May 18, 2016, while he was traveling on a train, and that he was charged with fourth-degree criminal possession of stolen property. A grand jury indicted him, but the state court dismissed the charges for lack of sufficient facts on April 4, 2018, and sealed the records. Livingston alleges that he was incarcerated for 23 months based on that indictment and was not allowed to apply that time to his sentence under a later indictment.

Livingston asserted constitutional and Federal Tort Claims Act theories concerning the crediting of his prior incarceration. He also asserted claims for false arrest, malicious prosecution, unlawful imprisonment, and negligent or reckless infliction of emotional distress involving the District Attorney’s Office. He sought $3 million in damages.

Before this opinion, Judge Laura Taylor Swain granted Livingston permission to proceed without paying filing fees and issued an order that dismissed some claims. That order dismissed claims against the New York County District Attorney’s Office based on immunity and dismissed claims against the New York County Supreme Court because it could not be sued under § 1983 and was protected by the Eleventh Amendment. Judge Swain also explained that challenges to the current sentence or its execution would have to be brought through separate federal petitions after the required state procedures, as applicable. The order directed the New York City Law Department to identify the detective and directed Livingston to file an amended complaint after receiving that information.

Request for Counsel

Livingston asked the court to appoint volunteer counsel. He stated under oath that he had trouble understanding technical and legal language, did not know how to apply legal terms to his claims, and had contacted attorneys who either declined to provide free assistance or did not respond.

The court applied the standard for appointing counsel to a person who cannot afford a lawyer in a civil case. The court considered the likely merit of the claims, Livingston’s ability to pay, his efforts to obtain counsel, and his ability to investigate and present the case without a lawyer. The court treated the likely merit of the claims as the most important factor. A person seeking appointed counsel need not prove that the claims would definitely survive dismissal or summary judgment, but must make a threshold showing of merit.

Court’s Analysis

The court accepted that Livingston could not afford private counsel, had made the necessary efforts to find a lawyer, and had difficulty understanding and applying legal terms. However, based on Judge Swain’s dismissal of most of the claims, the court concluded that Livingston had not met the required merit threshold. The court also found that his allegations against the John Doe detective were bare and essentially alleged only that he was arrested without probable cause.

Because Livingston was representing himself and was expected to file an amended complaint after the detective was identified, the court allowed him to seek counsel again later. The opinion did not decide the ultimate merits of Livingston’s remaining claims.

Disposition

The court denied Livingston’s application for volunteer counsel without prejudice to refiling after he filed his amended complaint. The clerk was directed to close the docket entry for the application. The court also identified organizations and court resources that might assist Livingston while he continued without appointed counsel.