Hatches v. Cipollini

Background

Anthony Hatches brought this action under 42 U.S.C. § 1983 against Sergeant T. Cipollini, Correction Officer L. Nichols, Correction Officer Preston, Correction Officer N. Walker, and Correction Officer Hernandez. Hatches was proceeding without a lawyer when he filed the motions addressed in this order. He asked to proceed without prepaying fees and asked the court to request a volunteer lawyer to represent him.

Hatches originally filed the action through counsel and paid the filing fees. The court later allowed an amended complaint, the defendants partially dismissed the amended complaint, and the defendants answered the remaining pleading. Expert discovery deadlines were extended several times, including because of disruptions caused by the coronavirus pandemic. Hatches’s counsel later moved to withdraw, and the court granted that motion and extended the deadlines by 30 days so Hatches could seek new counsel.

Request for counsel

The court explained that it cannot require a lawyer to represent an indigent person in a civil case. Under 28 U.S.C. § 1915(e)(1), however, the court may ask its pro bono panel—lawyers who volunteer for such work—to consider representing an eligible person. The court first considers whether the person’s position appears likely to have substance and then considers factors such as efforts to find a lawyer independently, the person’s ability to litigate without assistance, the complexity of the issues, and the need for expert questioning of witnesses.

The court found that Hatches had not shown that appointing volunteer counsel was warranted at that time. Although he might lack the financial resources to hire a private lawyer, he provided no information about efforts to find counsel and did not explain why he could not litigate without a lawyer. He said he had not had an opportunity to look for one because he was not notified that his former lawyer sought to withdraw. The court noted that counsel had provided proof of service of the withdrawal papers and the order granting withdrawal.

The court denied Hatches’s motion for appointment of pro bono counsel without prejudice to renewal at a later stage. It also extended the expert-discovery deadline to December 18, 2020. Hatches’s expert report was due October 30, 2020, and the defendants’ report was due November 30, 2020. The court warned that even if a later request were granted, volunteer representation was not guaranteed and Hatches would need to be prepared to continue without a lawyer.

Fee-waiver request and disposition

The court treated Hatches’s request to proceed without prepaying fees as moot because the docket showed that the filing fees had already been paid. The opinion also stated that the financial information in Hatches’s application would not have allowed the court to conclude that he was unable to pay, but the order’s stated disposition was that the motion was denied as moot.

Judge Philip M. Halpern therefore denied Hatches’s motion for leave to proceed without prepaying fees as moot and denied his motion for appointment of pro bono counsel without prejudice to renewal. The order also scheduled a case-management conference for December 21, 2020, and directed the Clerk of Court to mail Hatches a copy of the order.