Vivar v. New York City Police Department

Background

Pro se Plaintiff Felipe F. Vivar asked for three forms of relief: volunteer legal counsel, an extension of the discovery deadline, and referral of the case to a magistrate judge. The court had previously allowed Vivar to proceed without paying filing fees, finding that he qualified as indigent.

The opinion states that Vivar brings claims under 42 U.S.C. § 1983 and state law. He alleges that police officers entered his home without a warrant on two occasions and that he was involuntarily committed after both incidents. The opinion identifies claims that survived the defendants’ motion to dismiss: a battery claim against New York Presbyterian Hospital; false-arrest, medical-malpractice, and battery claims against New York Gracie Square Hospital; tort claims against Self Help Community Services; and § 1983 and tort claims against Self Help employees Diaz and Sear.

Legal standard for volunteer counsel

Under 28 U.S.C. § 1915(e)(1), a court may ask a lawyer to represent a person who cannot afford counsel. In civil cases, the court does not have to provide a lawyer and cannot force an attorney to accept the representation. The court explained that it must use requests for volunteer counsel sparingly.

The court applied factors requiring consideration of whether the plaintiff is indigent, whether the claim appears likely to have substance, the plaintiff’s ability to investigate important facts and present the case, the likely need for cross-examination, the complexity of the legal issues, and whether counsel would promote a fair result.

Reasoning

The court found that Vivar met the indigency requirement and that his claims were likely to have substance. It also found that the other factors supported limited volunteer representation. The opinion states that Vivar reported a learning disability and chronic illness affecting his ability to meet discovery deadlines. The court further stated that he would need discovery, would have to respond to multiple discovery requests, and might need to review a large volume of material.

The court therefore directed the Clerk to seek a volunteer attorney for a limited appearance. The lawyer’s role would include helping with certain document discovery and depositions, responding to outstanding discovery requests, and possibly participating in settlement discussions. The representation would not automatically include responding to a dispositive motion, although counsel could seek an extension or request that the court expand the assignment. Unless the court expanded the assignment, the representation would end after discovery was completed.

Other requests and disposition

The court granted Vivar’s request for an extension of time to complete discovery. It directed the parties to meet and confer and submit a joint letter with revised deadlines by January 25, 2021.

The court denied Vivar’s request for referral to a magistrate judge at that time because no dispute was then ready for adjudication by the magistrate judge.

The order therefore granted in part and denied in part Vivar’s requests. It directed the Office of Pro Se Litigation to seek a volunteer attorney for the limited purposes described in the order, granted the discovery-extension request, and denied the magistrate-referral request. The court also certified that an appeal from the order would not be taken in good faith and denied fee-waiver status for purposes of an appeal.