Francis v. City of New York
- George Daniels
- 1:18-cv-06468
- U.S. District Court · Southern District of New York
- 5
In Francis v. City of New York, Magistrate Judge Lehrburger directed the clerk to seek volunteer counsel for discovery in Francis’s civil-rights case.
Hopeton A. Francis, who received a limited effort to locate volunteer counsel for discovery and possible settlement discussions, but was not guaranteed representation. The requested lawyer would have no required role beyond the scope stated in the order unless the court expanded it.
What happened
In Francis v. City of New York, Hopeton A. Francis, who was proceeding without a lawyer, alleged that two New York City police officers maced, injured, and falsely arrested him near the 50th Street subway station. The court had already allowed him to proceed without paying filing fees and found that his claim was likely substantial.
The court directed the clerk to seek a volunteer lawyer for Francis, but only for discovery and possible settlement discussions. The lawyer would not be required to handle a later motion asking the court to end the case unless the court expanded the assignment. The court warned that a volunteer might not be found and that Francis should be prepared to continue without a lawyer.
Magistrate Judge Robert W. Lehrburger issued the order on April 13, 2021. The court also denied Francis permission to proceed without paying fees for an appeal, certifying that an appeal would not be taken in good faith.
The detailed version
- Francis v. City of New York · No. 1:18-cv-06468
- George Daniels
- Apr. 13, 2021
Background
Hopeton A. Francis brought a claim under 42 U.S.C. § 1983, a federal civil-rights law, alleging that two New York City police officers maced, injured, and falsely arrested him on or about April 6, 2018, near the “50th Street subway station.” The court had granted Francis permission to proceed without paying filing fees, so it found that he qualified as indigent. Francis was representing himself.
Legal standard
Under 28 U.S.C. § 1915(e)(1), a court may request a volunteer lawyer for a person who cannot afford counsel in a civil case. The court cannot require a lawyer to serve or use public funds to pay the lawyer. The court applied factors from Hodge v. Police Officers, including whether the claim appeared likely to have substance, the person’s ability to investigate and present the case, the likely need for depositions and cross-examination, the complexity of the legal issues, and whether counsel would promote a fair result.
Ruling
The court found that Francis’s claim was “likely to be of substance” and that the other factors supported his request. It concluded that proving his allegations would likely require discovery tasks that could be difficult for a self-represented litigant, including taking depositions of the two police officers.
The court therefore directed the clerk to attempt to locate pro bono counsel—an attorney volunteering legal services—for a limited appearance. The representation would cover discovery and could include settlement discussions. It would not automatically cover responding to a dispositive motion, meaning a motion seeking to resolve the case without a trial. Counsel could ask for an extension of time or for the court to expand the assignment. Without such an expansion, the representation would end after discovery, and it would terminate when counsel filed a notice of completion.
The order did not guarantee that a lawyer would volunteer. It stated that no funds were available to retain counsel in civil cases, that finding a volunteer could take a lengthy period, and that Francis should be prepared to proceed without an attorney. The court also certified that any appeal from the order would not be taken in good faith and denied Francis permission to proceed without paying filing fees for that appeal.
Disposition and effect
The motion or request for pro bono counsel was granted in the limited manner described in the order: the clerk was directed to seek counsel for discovery and possible settlement discussions. The order did not decide whether Francis’s civil-rights allegations were true or whether he would ultimately prevail.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.