Lu v. Rocah
- Nelson Roman
- 7:22-cv-09715
- U.S. District Court · Southern District of New York
- 5
In Lu v. Rocah, Judge Roman ordered service of the complaint but denied Lu’s request for free counsel without prejudice.
Jianqiao Lu must proceed with service through the court and U.S. Marshals Service and may apply later for the court to request volunteer counsel. The four named defendants are to be served.
What happened
In Lu v. Rocah, Jianqiao Lu, a person representing himself, challenged certain New York Penal Law provisions under a federal civil-rights statute and requested court-appointed volunteer counsel. He had permission to proceed without paying fees upfront.
The court directed the Clerk of Court and the U.S. Marshals Service to issue summonses and serve the defendants. The court also told Lu to request more time if service was not completed within 90 days after the summonses were issued and to notify the court of any address change.
Judge Nelson S. Roman denied Lu’s motion for pro bono counsel without prejudice because the case was too early for the court to assess its merits. The order allows Lu to apply again later for the court to request volunteer counsel.
The detailed version
- Lu v. Rocah · No. 7:22-cv-09715
- Nelson Roman
- Dec. 16, 2022
Background
Jianqiao Lu, who is held as a pretrial detainee in the Westchester County Jail, brought this action without a lawyer under 42 U.S.C. § 1983, a federal law that allows certain civil-rights claims against state actors. He challenges the constitutionality of certain sections of the New York Penal Law and seeks injunctive and declaratory relief. The defendants are Miriam E. Rocah, Catalina Blanco Buitrago, Letitia A. James, and Kathy C. Hochul, each sued in an official capacity. Lu also moved for the appointment of pro bono counsel, meaning a lawyer who would represent him without charging him a fee.
The court had previously granted Lu permission to proceed in forma pauperis, meaning without prepaying court fees. That permission allowed Lu to rely on the court and the U.S. Marshals Service to serve the defendants.
Service of Process
The court directed the Clerk of Court to issue a summons for each defendant, complete a U.S. Marshals Service Process Receipt and Return form for each defendant, and deliver the necessary paperwork to the Marshals Service. If the complaint is not served within 90 days after the summonses are issued, Lu should request an extension of time. The court also required Lu to notify it in writing if his address changes and stated that the action may be dismissed if he fails to do so.
Motion for Pro Bono Counsel
The court explained that requests for counsel by people unable to afford a lawyer are evaluated using factors including the apparent merits of the case, efforts to obtain a lawyer, and the person’s ability to investigate and present the case without assistance. The merits receive the most attention. The court also explained that it cannot appoint a lawyer under the relevant statute; it can only ask a lawyer to volunteer.
Because the case was too early for the court to assess the merits of Lu’s claims, the court denied his motion for appointment of pro bono counsel without prejudice to his filing an application for the court to request counsel later.
Disposition
The court ordered service of the complaint and denied Lu’s motion for appointment of pro bono counsel without prejudice. The order did not decide the merits of Lu’s constitutional challenge.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.