Richardson v. New York State Department of Corrections Community Service

Background

Fred W. Richardson brought a claim under 42 U.S.C. § 1983, a federal law that allows certain civil-rights claims against state actors. He alleged that Defendant C.O. Hinds sexually assaulted him. The court had granted Richardson permission to proceed without paying filing fees, establishing that he qualified as unable to afford counsel.

On April 5, 2019, Judge Briccetti found that Richardson’s claim was “likely to be of substance” and that the relevant factors favored his request for volunteer counsel. Volunteer lawyers later appeared for Richardson, but after completing some discovery, they requested permission to withdraw because of a conflict of interest. The court granted that request on July 8, 2020.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a court may ask an attorney to represent a person who cannot afford counsel, but it cannot require an attorney to volunteer or pay the attorney in an ordinary civil case. Courts consider whether the claim appears substantial and factors such as the person’s ability to investigate facts, the need for cross-examination, the person’s ability to present the case, the complexity of the legal issues, and whether counsel would help produce a fair result.

Court’s action

At an August 25, 2020 telephone conference, Richardson appeared without a lawyer. The parties reported that limited discovery remained, including Richardson’s deposition and possibly the review and production of medical records. Defense counsel also indicated that a summary-judgment motion might be filed after discovery closed.

Because of the case’s procedural stage and Judge Briccetti’s earlier finding that the claim was likely substantial, Judge Halpern directed the Clerk of Court to try to locate volunteer counsel for a limited appearance. The permitted work was to defend Richardson’s deposition, complete document discovery, oppose a summary-judgment motion if one was filed, and possibly participate in settlement discussions.

The order limited counsel’s obligations to those matters. Representation would end when counsel filed a notice of completion. The court also explained that volunteer counsel might not be found and that Richardson might have to continue without a lawyer. It denied permission to proceed without paying fees for an appeal from this order, certifying that such an appeal would not be taken in good faith. The order did not decide whether Richardson would prevail on his underlying civil-rights claim.