Lee v. Department of Corrections

Background

Michael J. Lee, proceeding without a lawyer, filed a federal civil-rights claim under 42 U.S.C. § 1983. He was a pretrial detainee at the Vernon C. Bain Center and alleged that the defendants knew about the facility’s conditions but had not adopted appropriate capacity limits, distancing requirements, or other safety measures to protect him from COVID-19. Lee alleged that he is HIV positive and had tested positive for tuberculosis.

Lee applied to proceed without paying court fees, and the court had already granted that request. He then sought a volunteer lawyer. 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 take a civil case or provide funds to pay the attorney.

Court’s analysis

The court applied factors from the Second Circuit’s decision in Hodge v. Police Officers. First, Lee had to show that he was unable to afford counsel and that his claim appeared likely to have substance. The court found both requirements satisfied. It also found that the remaining factors favored representation, particularly because Lee’s incarceration limited his ability to investigate the facts and present the case, and because a lawyer could help clarify the issues and conduct questioning.

Ruling

Judge Stewart D. Aaron directed the Clerk of Court to attempt to locate volunteer counsel for Lee. The order did not guarantee that a lawyer would volunteer, and it stated that Lee should be prepared to continue without counsel. The court also certified that an appeal from the order would not be taken in good faith and denied Lee’s fee-waiver status for purposes of an appeal. The order did not decide whether Lee’s underlying COVID-19 safety claim would succeed.