White v. The State of New York

Background

Johnny White, Jr. moved for appointment of counsel. He stated that he could not afford a lawyer. The court had previously granted his request to proceed without paying filing fees and noted that he remained incarcerated, so it presumed his financial situation had not changed.

White’s complaint brings a claim under 42 U.S.C. § 1983, a federal law that allows certain civil-rights claims against government officials. He alleges that corrections officers used excessive force against him on three occasions. The defendants were seeking summary judgment on fewer than all claims against fewer than all defendants.

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 order one to accept the representation. The court may only request volunteer representation.

The court applied factors from Second Circuit precedent, including whether the claim appears likely to have substance, the person’s ability to investigate and present the case, whether cross-examination will be important, the complexity of the legal issues, efforts to find a lawyer, and whether counsel would help produce a fairer and more efficient result.

Court’s reasoning and ruling

The court found that White qualified as unable to afford counsel. It also found that, because of the seriousness of his allegations and the pending partial summary-judgment motion, at least some of his claims were sufficiently substantial that they would proceed to trial unless the parties settled. The court determined that the other factors favored counsel because White apparently had been unsuccessful in finding a lawyer, cross-examination would be important, and a lawyer would present the case more clearly and efficiently.

The court therefore granted White’s motion to the extent that it would request volunteer counsel. It emphasized that there were no funds to pay lawyers in civil cases, that a volunteer might never agree to take the case, and that White should continue representing himself while waiting. If a lawyer volunteered, White would decide whether to retain that lawyer.

The court separately certified that an appeal from the order would not be taken in good faith and denied White permission to proceed without paying fees for purposes of an appeal.