Herbert v. Ginty

Background

Jeremiah F. Herbert applied for the court to request pro bono counsel, meaning a volunteer lawyer, under 28 U.S.C. § 1915(e)(1). The court had previously granted Herbert permission to proceed without paying filing fees. Herbert stated that his financial circumstances had not changed, so the court found that he remained unable to afford counsel.

In his amended complaint, Herbert asserted a claim under 42 U.S.C. § 1983, alleging that the defendants failed to protect him in violation of the Fourteenth Amendment. The court noted that the case had proceeded past two motions to dismiss and through discovery, and that the parties were preparing for trial.

Legal Standard

A federal court may request—but cannot compel or formally appoint—a volunteer lawyer to represent an indigent civil litigant. The court must first consider whether the claim appears likely to have substance. If that threshold is met, the court considers factors such as the litigant’s ability to investigate facts, the need to question witnesses, the complexity of the legal issues, the litigant’s ability to present the case, and whether counsel would likely lead to a fairer result.

Court’s Analysis

The court concluded that Herbert’s claim was “likely to be of substance.” It also found that a lawyer would be better positioned than Herbert, who lacked legal education and was incarcerated, to prepare for and present the case at trial. Although the court found that the case was not especially complex, it determined that counsel could assist with questioning witnesses, presenting evidence, sharpening the issues, and shaping the examination of witnesses.

Disposition

The court granted Herbert’s Application for the Court to Request Counsel. It separately certified that any appeal from the order would not be taken in good faith and denied Herbert no-fee status for purposes of an appeal. The Clerk was directed to terminate the motion pending at Doc. 143.