Marshall v. Garcia
- Philip Halpern
- 7:18-cv-06673
- U.S. District Court · Southern District of New York
- 4
In Marshall v. Annucci, Judge Halpern directed the Clerk to seek volunteer counsel for Marshall’s limited discovery representation and denied appeal fee-waiver status.
Steven Marshall, the plaintiff whose civil-rights claims require discovery, and volunteer attorneys whom the Clerk may seek to represent him on a limited basis.
What happened
In Steven Marshall v. Anthony J. Annucci, et al., Marshall brought constitutional claims under a federal civil-rights law, alleging that correction officers attacked him at Green Haven Correctional Facility in 2016 and later retaliated against him for reporting the abuse.
The court found that Marshall was unable to afford counsel, that his claims were likely substantial, and that his difficulty investigating and presenting the case, need for discovery, efforts to obtain counsel, and described sensory disabilities supported limited volunteer representation.
Judge Philip M. Halpern directed the Clerk to try to locate a volunteer lawyer for discovery, the case-management conference after discovery, and possible settlement discussions. The court also denied fee-waiver status for any appeal and warned that a volunteer might not be found.
The detailed version
- Marshall v. Garcia · No. 7:18-cv-06673
- Philip Halpern
- Jan. 7, 2021
Background
Steven Marshall filed a third amended complaint asserting claims under 42 U.S.C. § 1983, a federal civil-rights statute used to sue state officials for constitutional violations. He alleged that correction officers attacked him while he was incarcerated at Green Haven Correctional Facility in 2016 and that he experienced continuing retaliation after reporting the alleged abuse. He also alleged that some correction officers belonged to a group he called a “beat down/goon squad,” which he said used excessive force, sexual assault, abusive pat-frisks, and strip searches against inmates.
The court had already granted Marshall permission to proceed without paying filing fees, finding that he was unable to afford them. Marshall sought volunteer counsel. The court explained that in civil cases it cannot require the government to provide a lawyer or appoint one to serve automatically; it may instead ask an attorney to volunteer.
Reasoning
The court applied factors from Hodge v. Police Officers. It found that Marshall’s claims were “likely to be of substance.” It also found that the other factors favored requesting counsel because Marshall described difficulty investigating important facts and presenting his case, had shown efforts to obtain counsel, needed discovery to prove his allegations, and described sensory disabilities. The court concluded that representation could produce a quicker and fairer result by helping clarify the issues and conduct questioning.
Order and scope of representation
The court directed the Clerk to attempt to locate pro bono counsel—a volunteer lawyer—for limited purposes: conducting discovery, appearing at the case-management conference at the close of discovery, and possibly participating in settlement discussions. The lawyer would not be required to handle matters outside those subjects, including responding to a dispositive motion unless the court expanded the representation or granted other relief. The representation would end after discovery and the case-management conference, or earlier when counsel filed a notice of completion.
The order stated that volunteer counsel could seek reimbursement of certain out-of-pocket expenses under the court’s Pro Bono Fund. It also warned Marshall that there was no guarantee a lawyer would volunteer and that he should be prepared to continue without counsel. Finally, the court certified that an appeal would not be taken in good faith and denied permission to proceed without paying fees for an appeal.
Disposition
The court directed the Clerk to seek limited pro bono counsel for Marshall. It did not decide the underlying civil-rights claims in this order.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.