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, Magistrate Judge Lehrburger asked the clerk to seek volunteer counsel for discovery but denied IFP status for any appeal.
The plaintiff is affected because the court will seek, but cannot guarantee, a volunteer lawyer to assist with discovery and possible settlement discussions. Any volunteer attorney would have only the limited responsibilities described in the order.
What happened
In Marquez-Ortiz v. United States, the plaintiff, who is proceeding without a lawyer, alleges injuries from a slip and fall while incarcerated at a federal facility. The plaintiff was allowed to proceed without paying court fees, and the court found that the claim was likely substantial.
The court concluded that volunteer counsel could help investigate facts, handle disclosures and discovery, provide a health-information authorization, and possibly discuss settlement. The requested representation would be limited to discovery and settlement discussions, and would not automatically include responding to a motion that could end the case.
Magistrate Judge Robert W. Lehrburger directed the clerk to seek volunteer counsel, while warning that no lawyer might volunteer and that the plaintiff should be prepared to continue without one. The court also denied fee-waiver status for an appeal after certifying that an appeal would not be taken in good faith.
The detailed version
- Marquez-Ortiz v. United States · No. 1:20-cv-05793
- James Oetken
- May 6, 2022
Background
The plaintiff filed a civil action against the United States and alleges that he was injured in a slip and fall during his incarceration at a federal facility. The opinion states that the plaintiff asserted a claim under 42 U.S.C. § 1983. The court had previously granted the plaintiff permission to proceed without paying filing fees, finding that he qualified as unable to afford counsel.
Request for Volunteer Counsel
The court applied the standards governing requests for pro bono counsel, meaning volunteer legal representation. A court may request—but cannot force—an attorney to volunteer in a civil case. The court considered whether the claim was likely to be substantial and whether counsel would help investigate facts, handle potentially conflicting evidence, present the case, address legal complexity, or otherwise lead to a fairer result.
The court found that the plaintiff’s claim was likely to be substantial and that the other relevant factors favored requesting counsel. It noted that discovery would involve responding to initial disclosures, providing authorization for health-information records, and conducting additional discovery as needed. The court concluded that counsel could help sharpen the issues and make the case proceed more fairly and efficiently.
Order
The court directed the clerk to try to locate pro bono counsel for a limited appearance focused on discovery. Counsel may also participate in settlement discussions. The representation would not require counsel to handle a motion that could dispose of the case. If such a motion is filed, counsel could ask for more time or request an expansion of the representation. Without an expansion, the representation would end after discovery, and it would terminate formally when counsel filed a notice of completion.
The court warned that volunteer lawyers are scarce, that there could be a lengthy wait, and that there was no guarantee that an attorney would accept the case. It also certified that an appeal from the order would not be taken in good faith and denied the plaintiff permission to proceed without paying fees for purposes of an appeal.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.