Smolen, Jr. v. Wesley
- Philip Halpern
- 7:16-cv-02417
- U.S. District Court · Southern District of New York
- 3
In Smolen, Jr. v. Wesley, Judge Halpern granted Smolen’s request for counsel but denied fee-free appeal status.
Samuel J. Smolen, Jr. received a request for volunteer counsel in his pending excessive-force case; the order also denied fee-free status for an appeal from this order.
What happened
In Samuel J. Smolen, Jr. v. C.O. M. Wesley, et al., Samuel J. Smolen, Jr. asked the court to request a volunteer lawyer for him. The court had already allowed him to proceed without paying filing fees and found that he remained unable to afford counsel.
The court found that Smolen’s claim that defendants used excessive force in violation of the Eighth Amendment was likely substantial. His case had survived a motion to dismiss and was approaching trial, where he would need to question witnesses and present evidence to a jury. The court found that, although the case was not especially complex, a lawyer would better help him prepare and present it because he lacked legal education and was incarcerated.
Judge Philip M. Halpern granted Smolen’s application for the court to request counsel. The court also denied fee-free status for any appeal from the order and directed the clerk to close the pending motion at docket entry 148.
The detailed version
- Smolen, Jr. v. Wesley · No. 7:16-cv-02417
- Philip Halpern
- Feb. 3, 2022
Background
Samuel J. Smolen, Jr. filed an application asking the court to request counsel under 28 U.S.C. § 1915(e)(1). That statute permits a court to request that a lawyer volunteer to represent a person who cannot afford counsel; it does not give the court authority to appoint a lawyer or provide funds to pay one. The court had previously granted Smolen permission to proceed without paying filing fees. When he sought counsel, he stated that his financial circumstances had not changed, so the court found that he was indigent.
Legal standard
The court explained that civil litigants generally have no automatic right to a lawyer. A request for counsel should be granted sparingly. The court first considers whether the claim appears likely to have substance and then considers factors such as the person’s ability to investigate facts, question witnesses, present evidence, and address the legal issues. The court also considers whether a lawyer would be more likely to produce a fair result in the particular case.
Court’s analysis
Smolen brought a claim under 42 U.S.C. § 1983, alleging that the defendants used excessive force against him in violation of the Eighth Amendment. The court found that the claim was likely substantial because the case had advanced beyond a motion to dismiss and the parties were preparing for trial. The court also determined that Smolen would need to question witnesses and present evidence to a jury. Although the case was not especially complex, the court found that a lawyer would be better positioned to prepare and present it because Smolen lacked legal education and was incarcerated.
Disposition
The court granted Smolen’s Application for the Court to Request Counsel. The court did not state that it was appointing counsel. It certified that any appeal from the order would not be taken in good faith and denied permission to proceed without paying filing fees for purposes of an appeal. The clerk was directed to terminate the motion pending at docket entry 148.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.