Herbert v. Lynch
- Nelson Roman
- 7:22-cv-06303
- U.S. District Court · Southern District of New York
- 3
In Herbert v. Lynch, Judge Reznik denied Herbert’s motion for pro bono counsel without prejudice and deferred discovery and settlement requests.
Jeremiah F. Herbert’s request for volunteer counsel was denied without prejudice. Both Herbert and the defendants were required to submit case-status letters, and Herbert’s possible discovery motion and settlement-conference request were deferred.
What happened
Jeremiah F. Herbert, who is incarcerated and representing himself, asked the court to appoint a volunteer lawyer for settlement and trial. He also requested a settlement conference and referred to a possible motion to compel discovery, although the discovery dispute was unclear.
The court said Herbert had no automatic right to a lawyer and that appointment required an initial showing that his claims were likely meritorious. The court accepted that he could not afford a lawyer but could not determine at this early stage whether his claims met that requirement. The court also noted that Herbert had been conducting discovery and prosecuting the case himself.
Judge Reznik denied the motion for pro bono counsel without prejudice. The court directed both sides to file status letters about discovery, next steps, and any disputes by July 18, 2023; defendants also had to address the settlement-conference request. The court deferred Herbert’s possible motion to compel and settlement-conference request while awaiting those updates.
The detailed version
- Herbert v. Lynch · No. 7:22-cv-06303
- Nelson Roman
- July 11, 2023
Background
Jeremiah F. Herbert is incarcerated, is representing himself, and is proceeding without paying filing fees. He moved for appointment of volunteer counsel for settlement and trial. He also asked the court to schedule a settlement conference and referred to a motion to compel discovery, but the court said the discovery issues were unclear.
Legal standard
The court explained that a person in a civil case generally has no right to a lawyer. Under 28 U.S.C. § 1915(e)(1), the court may appoint counsel for a person unable to afford one. Before doing so, the court must first determine whether the person’s position appears likely to have merit. If that threshold is met, the court may consider additional factors, including the person’s ability to investigate facts and present the case, the complexity of the legal issues, the person’s inability to obtain a lawyer, and any special reason appointment would help produce a fair result.
Ruling
Because Herbert was proceeding without paying filing fees, the court accepted for purposes of this motion that he could not afford counsel. But at this early stage, the court could not determine whether his claims were likely to have merit. The court also found that Herbert appeared able to handle the case himself because he had been participating in discovery and prosecuting his case.
The court denied without prejudice Herbert’s motion for appointment of pro bono counsel. The clerk was directed to terminate that motion. The court ordered each party to file a letter by July 18, 2023, describing discovery progress during the preceding month, expected next steps during the following month, and any pending discovery disputes, including Herbert’s possible motion to compel. Defendants were also directed to respond to Herbert’s request for a settlement conference. In light of the requested status updates, the court deferred the possible motion to compel and the request for a settlement conference.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.