Azor-El v. New York City Department of Corrections

Background

Jean Azor-El, Anthony Brown, James Carter, Dakwan Fennell, Ramón Gomez, Antonio Graham, Anthony Medina, and Lance Kelly jointly filed a lawsuit under 42 U.S.C. § 1983, a federal civil-rights law. They filed without lawyers and jointly requested counsel. The court had granted their requests to proceed without paying filing fees.

The plaintiffs were detained at the North Infirmary Command on Rikers Island and alleged that they had preexisting medical conditions that increased their risk from COVID-19. They claimed that the facility lacked enough medical, mental-health, and security personnel; did not provide sufficient gloves, masks, hand sanitizer, or disinfectant; and required employees who had tested positive for COVID-19 to return to work while still symptomatic and before testing confirmed that they were no longer ill. They also alleged that COVID-19-related delays in their state criminal cases impaired their ability to present a defense and that detainees were denied full commissary purchases before receiving misconduct reports or disciplinary proceedings.

The plaintiffs initially presented their claims as a class action. In an earlier order, the court ruled that the case could not proceed as a class action, separated the claims, and directed the Clerk of Court to open individual cases.

Consolidation

The court applied Rule 42 of the Federal Rules of Civil Procedure, which allows related cases involving common legal or factual questions to be handled together. It found that the cases involved common issues and the same defendants. The court concluded that consolidating them served fairness and efficient case management, and directed the Clerk of Court to consolidate the cases. Consolidation joined the cases for handling but did not eliminate their separate identities.

Request for volunteer counsel

The court explained that civil litigants who cannot afford lawyers do not have an automatic right to appointed counsel. Under the federal law governing fee-free litigation, a court may ask a lawyer to volunteer, but it cannot require or pay that lawyer to represent a civil litigant.

Applying the factors from the Court of Appeals for the Second Circuit, the court found that the plaintiffs’ claims were likely to have substance. It also found that other factors favored seeking volunteer counsel. The plaintiffs had limited ability to investigate and present their cases because the Rikers Island law library was closed during the pandemic. The court also noted that the plaintiffs relied on Anthony Medina, who was legally blind, to help with their claims because he was the only plaintiff with legal training, and that he lacked proper devices to see when the complaint was filed.

Disposition

Judge Katherine Polk Failla directed the Clerk of Court to consolidate the cases and granted the plaintiffs’ motion for appointment of counsel. The court clarified that any representation would depend on a volunteer lawyer choosing to take the case and that no lawyer was guaranteed. The court also certified that an appeal from the order would not be taken in good faith and denied fee-free status for purposes of an appeal.

The order did not decide the merits of the plaintiffs’ constitutional claims.