Ngono v. United States

Background

Andre Marie Ngono, proceeding without a lawyer, moved for court-appointed counsel. The court had previously granted his request to proceed without paying filing fees, establishing that he was unable to afford counsel. Ngono was being held in federal immigration custody at a facility in Georgia. His remaining claims under the Federal Tort Claims Act concerned alleged incidents on a single date in 2016, including alleged assault and denial of medical care by officers of the federal Bureau of Prisons while he was in federal pretrial detention at the Metropolitan Correctional Center in New York City.

Legal standard

The court explained that, in a civil case, it generally cannot require the government to provide a lawyer or pay for one. Under 28 U.S.C. § 1915(e)(1), the court may ask a lawyer to volunteer. The court considered whether Ngono’s claims appeared likely to have substance and then applied factors concerning his ability to investigate facts, contact witnesses, conduct depositions, present the case, and address the legal issues. The court also considered his stated efforts to find counsel.

Court’s analysis

The court found that Ngono’s claims were likely to have substance because they had survived a motion to dismiss. It also found that the relevant factors favored limited volunteer representation, particularly because Ngono was in custody and reported extremely limited access to legal research tools. Those circumstances impaired his ability to investigate facts, communicate with potential witnesses, depose opposing witnesses, and present legal arguments. The court also noted his representation that he had unsuccessfully tried to obtain counsel.

Ruling and scope of representation

Judge Debra Freeman granted Ngono’s motion to the extent that the Clerk of Court was directed to seek pro bono counsel for a limited appearance. The requested lawyer’s responsibilities would include: (1) helping Ngono research the elements of his Federal Tort Claims Act claims and the evidence needed to prove them; (2) helping prepare and respond to initial discovery requests; (3) representing him at his deposition; and (4) deciding whether to depose certain witnesses. Counsel could also participate in settlement discussions.

The order did not require a particular lawyer to accept the case. Any volunteer would file a notice of limited appearance. Counsel would not be required to respond to a dispositive motion, although counsel could seek an extension or ask the court to expand the representation. Unless the representation’s scope was expanded, it would end after discovery, and it would terminate upon counsel’s filing of a notice of completion.

The court advised Ngono that volunteer counsel might not be found and that he should be prepared to continue without a lawyer. It also certified that an appeal from the order would not be taken in good faith and denied permission to proceed without paying fees for such an appeal. The Clerk of Court was directed to close the motion on the docket and send Ngono a copy of the order.