Herbert v. Lynch
- Nelson Roman
- 7:22-cv-06303
- U.S. District Court · Southern District of New York
- 2
In Herbert v. Lynch, Judge Davison denied Herbert’s request for volunteer counsel without prejudice because the case was early and he had handled discovery himself.
Jeremiah Herbert’s request for appointed volunteer counsel was denied without prejudice; the underlying claims were not decided in this order.
What happened
In Herbert v. Lynch, Jeremiah Herbert, who was representing himself, asked the court to appoint a volunteer lawyer. The court accepted his statement that he could not afford counsel for purposes of the request.
The court said the case was still at a preliminary stage and that it could not yet determine whether Herbert’s claims had enough merit to justify appointing counsel. It also found that Herbert had shown he could handle the case by conducting discovery.
The court denied the motion without prejudice and directed the clerk to terminate it. The order was issued by United States Magistrate Judge Paul E. Davison.
The detailed version
- Herbert v. Lynch · No. 7:22-cv-06303
- Nelson Roman
- May 2, 2023
Background
Jeremiah Herbert, proceeding without a lawyer, applied for the appointment of volunteer counsel. The order states that the case was before Magistrate Judge Paul E. Davison under an order of reference. Herbert’s application was dated March 28, 2023.
Legal standard
The court explained that people in civil cases generally have no right to appointed counsel. Under 28 U.S.C. § 1915(e)(1), however, a court may ask a lawyer to represent someone who cannot afford counsel. Before making that request, the court must first consider whether the person is unable to afford a lawyer and whether the claims appear likely to have merit. If that initial showing is made, the court may also consider factors such as the person’s ability to investigate facts and present the case, the complexity of the legal issues, the ability to obtain a lawyer independently, and any special reason appointment would promote a fair result.
Ruling
For purposes of Herbert’s application, the court accepted his statement that he was unable to afford counsel. But because the case was at a preliminary stage, the court said it could not yet determine whether his claims met the required initial showing of merit. The court also found that Herbert had so far demonstrated an ability to proceed without counsel because he had conducted discovery and shown that he could effectively pursue the case.
The court therefore denied without prejudice Herbert’s motion for appointment of counsel and directed the clerk to terminate the motion, docketed as Dkt. 35.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.