Marquez-Ortiz v. United States
- James Oetken
- 1:20-cv-05793
- U.S. District Court · Southern District of New York
- 4
In Marquez-Ortiz v. United States, Judge Lehrburger directed the clerk to seek volunteer counsel for discovery but did not guarantee representation.
Jerylan Marquez-Ortiz, the self-represented plaintiff, may receive volunteer counsel for the limited purpose of discovery, but the order provides no guarantee that a lawyer will accept the case. The United States remains the defendant, and the underlying claim was not decided.
What happened
In Marquez-Ortiz v. United States, Jerylan Marquez-Ortiz, who is representing himself, alleged that he was injured in a slip-and-fall while incarcerated at a federal facility. The court had already allowed him to proceed without paying filing fees and found that his claim appeared substantial enough to justify considering volunteer counsel.
The court directed the clerk to seek a volunteer lawyer for a limited role in discovery, including initial disclosures, medical-information authorization, and other necessary discovery. The lawyer could also participate in settlement discussions, but would not have to respond to a dispositive motion unless the court expanded the assignment. The court warned that a volunteer might not be found and that Marquez-Ortiz should be prepared to continue without a lawyer.
Judge Robert W. Lehrburger also certified that an appeal from this order would not be taken in good faith and denied fee-free status for an appeal. The order did not decide the underlying claim.
The detailed version
- Marquez-Ortiz v. United States · No. 1:20-cv-05793
- James Oetken
- Mar. 9, 2022
Background
Jerylan Marquez-Ortiz filed a claim under 42 U.S.C. § 1983 alleging injuries from a slip and fall during his incarceration at a federal facility. The opinion states that the Court had previously granted his request to proceed without paying filing fees, establishing that he qualified as indigent. He was representing himself.
Legal standard
Under 28 U.S.C. § 1915(e)(1), a court may request—rather than require or formally appoint—an attorney to volunteer for a person unable to afford counsel. The court applied factors from Hodge v. Police Officers, including whether the claim appeared likely to have substance, the litigant’s ability to investigate and present the case, the need for cross-examination, the complexity of the legal issues, and whether counsel would likely produce a fairer result.
Ruling
The Court found that Marquez-Ortiz’s claim was “likely to be of substance” and that the other factors supported seeking volunteer counsel. It directed the Clerk of Court to attempt to locate pro bono counsel for a limited appearance focused on discovery. The permitted work included responding to initial disclosures, providing medical-information authorization, conducting necessary discovery, and participating in settlement discussions.
The limited representation would not automatically include responding to a dispositive motion. If the defendant filed such a motion, counsel could seek an extension of time or ask the Court to expand the assignment. Unless the scope was expanded, the representation would end after discovery, when counsel filed a notice of completion.
The Court emphasized that civil cases have no guaranteed government-funded counsel, that volunteer attorneys may not be available for a lengthy period, and that there was no guarantee that an attorney would accept the matter. It also certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith and denied fee-free status for purposes of an appeal. The order did not resolve the merits of the underlying claim.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.