Tolliver v. Jordan

Background

The order addressed Eric Tolliver’s request for pro bono counsel, meaning a volunteer lawyer, in his civil-rights case. The court had previously ruled on the defendants’ motion to dismiss. Tolliver’s First Amendment retaliation claim against Lieutenant Jordan, DePaolo, and Bonnell concerning his transfer to Attica survived to the extent he sought money damages, but not injunctive or declaratory relief. That claim was to proceed to discovery.

The court had dismissed Tolliver’s Fourteenth Amendment claims without leave to replead. It had also allowed Tolliver to replead his First Amendment retaliation claim against Vega and Houck within thirty days. Tolliver did not file a second amended complaint or request more time. The court therefore dismissed that claim with prejudice. The order identifies the Jordan, DePaolo, and Bonnell retaliation claim as the remaining claim proceeding to discovery.

Request for Counsel

Tolliver had been granted permission to proceed without paying filing fees, so the court found that he qualified as indigent. Under the federal statute governing requests for counsel for people unable to afford a lawyer, a court may request—but cannot require—a lawyer to volunteer in a civil case.

The court applied factors including whether the claim appeared likely to have substance, the litigant’s ability to investigate important facts, the need for cross-examination, the litigant’s ability to present the case, the complexity of the legal issues, and whether representation would help produce a fair result. The court found that Tolliver’s surviving claim had passed a motion to dismiss and was likely substantial. It also found that discovery and conflicting evidence requiring cross-examination supported representation. The court noted that Tolliver had tried to obtain representation on his own but had not succeeded.

Ruling

Judge Philip M. Halpern granted Tolliver’s motion. The Clerk was directed to seek a volunteer lawyer to enter a limited appearance for conducting discovery. The lawyer may also participate in settlement discussions, but will not be required to respond to a later dispositive motion unless the court expands the representation. The representation will end after discovery is completed and counsel files a notice of completion.

The court also requested that the Clerk terminate Gabriela Vega and Richard Houck as defendants and mail Tolliver a copy of the order. The court certified that an appeal from this order would not be taken in good faith and denied permission to proceed without paying fees for such an appeal.