Gomez-Kadawid v. Lee

Background

Yahkima Gomez-Kadawid brought this civil-rights action under 42 U.S.C. § 1983 while representing himself. He alleged that, while he was in custody at Rikers Island, he sought pain medication for a wisdom tooth and was taken to Bellevue Hospital. According to the complaint, medical personnel forced him to undergo surgery to remove the tooth under anesthesia without his consent. He alleged that the surgery caused permanent damage and continuing pain that left him barely able to eat.

The court had previously denied his request for the court to seek volunteer counsel because two defendants appeared to be in default and a third had not been served. After two defendants appeared and filed a motion to dismiss, and service on the third defendant appeared likely to be resolved, the court allowed Gomez-Kadawid to renew his request.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a court may ask a lawyer to volunteer to represent a person who cannot afford counsel. In a civil case, the court is not required to provide a lawyer and cannot require one to accept the representation. The decision is discretionary, and volunteer counsel should be requested sparingly.

The court applied factors identified by the U.S. Court of Appeals for the Second Circuit, including whether the litigant is financially unable to afford counsel, whether the claim appears likely to have substance, the litigant’s ability to investigate and present the case, the complexity of the legal issues, and whether counsel would likely lead to a fairer and more efficient result.

Court’s reasoning

The court found that Gomez-Kadawid qualified as financially unable to afford counsel because his request to proceed without paying court fees had been granted. It also found that his allegation that he was subjected to invasive surgery without consent was likely substantial enough to satisfy the applicable threshold, regardless of whether the complaint would ultimately survive the pending motion to dismiss.

The court further relied on Gomez-Kadawid’s reported transfer from a psychiatric facility to Sing Sing Correctional Facility, his inability to identify anyone who could help him prepare court papers, his uncertainty about responding to the dismissal motion, and his reported mental-health difficulties. The court concluded that he would likely have difficulty handling depositions and other evidence-gathering if the case proceeded.

Disposition and scope of representation

Judge Debra Freeman granted the renewed application for the court to seek volunteer counsel and directed the Clerk of Court to try to locate a lawyer. The lawyer’s limited role would include helping Gomez-Kadawid respond to the pending motion to dismiss and, if the case proceeded to discovery, defending his deposition, conducting document discovery, and conducting necessary depositions of defendants. Counsel could also participate in settlement discussions.

The representation would not automatically include responding to a motion for summary judgment or representing Gomez-Kadawid at trial. Unless the court expanded the lawyer’s role, the representation would end after discovery. The court warned that a volunteer might not be found and that Gomez-Kadawid should be prepared to continue without a lawyer.

The court also certified that an appeal from this order would not be taken in good faith and denied fee-free status for purposes of an appeal. This order addressed counsel and appeal-fee issues; it did not decide the merits of Gomez-Kadawid’s medical-treatment claims.