Joseph v. Annucci
- Nelson Roman
- 7:18-cv-07197
- U.S. District Court · Southern District of New York
- 4
In Joseph v. Elberth, Judge Roman granted Rodney Joseph’s request for volunteer counsel for his trial on an excessive-force claim.
Rodney Joseph, whose request for volunteer counsel for his jury trial was granted; the order also concerns the court’s volunteer-attorney process.
What happened
In Joseph v. Elberth, Rodney Joseph, who was representing himself, had one remaining claim: that Correctional Officer William Elberth used excessive force in violation of the Eighth Amendment. The case was ready for a jury trial.
Joseph asked the court to appoint volunteer counsel. The court found that his claim was likely substantial because it had survived a motion to dismiss. It also found that his incarceration, possible difficulty investigating facts, conflicting medical evidence, and medical and scientific issues supported appointing counsel.
Judge Nelson S. Roman granted Joseph’s oral request for pro bono counsel. The court warned that a volunteer might not be found quickly, that no volunteer was guaranteed to accept the case, and that Joseph should be prepared to continue representing himself.
The detailed version
- Joseph v. Annucci · No. 7:18-cv-07197
- Nelson Roman
- Mar. 25, 2022
Background
Rodney Joseph brought this civil-rights case under 42 U.S.C. § 1983 while representing himself and proceeding without paying filing fees. He originally asserted First and Eighth Amendment claims against William Elberth and other defendants. In an earlier order, the court granted in part and denied in part the defendants’ motion to dismiss: it denied the motion as to Joseph’s Eighth Amendment excessive-force claim against Elberth and granted it as to the other claims against the other defendants. The parties later completed discovery and told the court that they did not plan to file summary-judgment motions and were ready for trial.
Request for Counsel
During a telephone status conference, Joseph orally asked the court to appoint volunteer counsel for the upcoming jury trial. The court explained that it could not order an attorney to represent an indigent person in a civil case. Under 28 U.S.C. § 1915(e)(1), however, it could ask the court’s volunteer-attorney panel to consider representing him.
The court applied the standards governing requests for appointed counsel in cases brought by people representing themselves. First, it considered whether Joseph’s position appeared likely to have substance. Because his excessive-force claim had survived the motion to dismiss and was proceeding to a jury trial, the court found this requirement satisfied.
The court also found that the other factors favored counsel. Joseph’s incarceration and possible difficulties related to COVID-19 protocols could limit his ability to investigate the claim. The court expected conflicting evidence requiring cross-examination, including evidence involving medical records and medical experts. Joseph also claimed that the force caused him to suffer a minor heart attack, creating possible medical and scientific issues concerning causation and damages.
Ruling
The court granted Joseph’s oral request for pro bono counsel. It explained that civil-case counsel would come from volunteers and that there was no guarantee that an attorney would accept the case. The court also stated that the case would continue at its normal pace and that Joseph should be prepared to proceed without a lawyer. The Clerk of Court was directed to mail Joseph a copy of the order and record service on the docket.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.