White v. The State of New York
- Cathy Seibel
- 7:19-cv-00543
- U.S. District Court · Southern District of New York
- 4
In White v. Torres, Judge Seibel granted Johnny White Jr.’s request for volunteer trial counsel but denied fee-free appeal status.
Johnny White Jr. may receive a request for volunteer counsel for trial, but no lawyer is guaranteed. The defendant corrections officers remain parties to the underlying civil-rights case.
What happened
In Johnny White Jr. v. C.O. E. Torres, Johnny White Jr. asked for a volunteer lawyer to represent him at trial after the court denied two defendants’ request for partial summary judgment. The order addressed only that request for counsel.
White said he could not afford a lawyer and remained incarcerated. His claims accuse corrections officers of excessive force, sexual abuse, and failing to protect him during three incidents. The court found that at least some claims appeared substantial and that the case would involve disputed evidence and cross-examination.
Judge Cathy Seibel granted White’s request for volunteer trial counsel. She warned that a volunteer might not be found and that the case would continue on its normal schedule; she also denied fee-free status for any appeal from the order.
The detailed version
- White v. The State of New York · No. 7:19-cv-00543
- Cathy Seibel
- Jan. 25, 2023
Background
After a same-day bench ruling denying the motion for partial summary judgment filed by defendants Eliceo Torres and Tyrone Cunningham, Johnny White Jr. requested counsel to represent him at trial. The order concerns the request for volunteer counsel, not the ultimate resolution of White’s claims.
Legal standard
Under 28 U.S.C. § 1915(e)(1), a court may request that an attorney volunteer to represent a person who cannot afford counsel. In civil cases, the court cannot require the government to provide or pay for a lawyer. The court must consider the request sparingly because volunteer attorney time is limited.
The court applied factors from Hodge v. Police Officers. First, the person must show that he cannot afford counsel. The court then considers whether the claims appear likely to have substance. If those requirements are met, the court considers factors including the person’s ability to investigate important facts and present the case, whether conflicting evidence will require cross-examination, the complexity of the legal issues, and whether counsel would help produce a fairer result.
Court’s reasoning
The court found that White qualified as unable to afford counsel based on his prior representation and his continued incarceration. It also found that his claims of excessive force, sexual abuse, and failure to protect under 42 U.S.C. § 1983 presented factual disputes requiring a trial. The court considered at least some claims, particularly the sexual-abuse claim, likely to have substance.
The court further found that the relevant factors favored counsel. White was incarcerated and had been unable to retain a lawyer. The corrections officers denied the allegations, making cross-examination important, and the court concluded that counsel would present the case more clearly and efficiently.
Disposition
The court granted White’s request for counsel for trial. It explained that the court relies on volunteer lawyers, that there is no guarantee a lawyer will accept the case, and that White should be prepared to proceed without counsel. The court also certified that any appeal from the order would not be taken in good faith and denied White fee-free status for purposes of an appeal.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.