White v. Gutwein
- Nelson Roman
- 7:20-cv-04532
- U.S. District Court · Southern District of New York
- 4
In White v. Gutwein, Judge Roman denied White’s counsel request without prejudice and denied defendants’ dismissal motion solely to allow an opposition.
Mike White received another opportunity to oppose the defendants’ motion to dismiss but was not appointed counsel at this stage. The defendants could refile their motion under the new briefing schedule.
What happened
In White v. Gutwein, Mike White, representing himself, asked the court to appoint a lawyer in his civil case. He said he could not afford counsel and that the case involved complex issues, video evidence, a witness who had left the facility, and his limited legal knowledge.
White did not oppose the defendants’ motion to dismiss after receiving two deadline extensions. The court found that the case record was not developed enough to show that his claims were likely to have merit or that a lawyer was necessary at that stage.
The court denied White’s request for appointed counsel without prejudice, meaning he could renew it later if he showed a potentially meritorious claim. Judge Nelson S. Roman also denied the defendants’ motion to dismiss solely to give White another chance to respond, set new briefing deadlines, and allowed the defendants to file the motion again.
The detailed version
- White v. Gutwein · No. 7:20-cv-04532
- Nelson Roman
- July 6, 2021
Background
Mike White, proceeding without a lawyer, brought this civil action against Eric Gutwein, C. Story, D. Venettozzi, and T. Griffin. The court had previously dismissed the claims against Commissioner A. Annucci. The defendants later obtained permission to file a motion to dismiss White’s complaint.
White received two extensions of the deadline to oppose the motion but did not serve an opposition. Instead, he submitted an application asking the court to appoint counsel. In that application, White said that he could not afford a lawyer, that the issues were complex and involved video evidence, that a witness had left the facility, and that he had limited knowledge of the law.
Request for appointed counsel
Under 28 U.S.C. § 1915(e)(1), a federal court may ask attorneys on its pro bono panel to represent an indigent party in a civil case. The court first considers whether the party’s position appears likely to have substance, and then considers factors such as the party’s ability to obtain representation, the complexity of the issues, the need for factual investigation, and the need for professional cross-examination.
The court concluded that, at this early stage, the record did not indicate that White’s position was likely to have substance or that particularly complex issues required appointed counsel. It therefore denied without prejudice White’s June 15, 2021 application for appointment of counsel. The order allowed White to renew the request later if he could demonstrate a potentially meritorious claim.
Motion to dismiss and briefing schedule
Because White appeared to have focused on seeking counsel rather than preparing his opposition, the court granted him one additional extension. White’s opposition had to be served by August 9, 2021, and the defendants’ reply had to be served by August 24, 2021. The defendants were directed to file all motion papers by August 24, and the court identified this as the final extension.
The court denied the defendants’ motion to dismiss solely to give White an opportunity to serve his opposition under the new schedule. The court granted the defendants leave to refile the motion under that schedule. If White did not serve an opposition or timely request another extension by August 9, the defendants were directed to refile their unopposed motion on August 24. The order did not decide the merits of the motion to dismiss.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.