McFadden v. Keyser
- Nelson Roman
- 7:23-cv-00802
- U.S. District Court · Southern District of New York
- 7
In McFadden v. Keyser, Judge Roman denied McFadden’s request for appointed counsel without prejudice.
Robert McFadden, whose request for appointed counsel was denied without prejudice; the underlying lawsuit was not resolved by this order.
What happened
McFadden v. Keyser is a civil-rights and religious-rights lawsuit by Robert McFadden about events allegedly occurring at Sullivan Correctional Facility between 2019 and 2022. McFadden is incarcerated and representing himself.
McFadden asked the court to appoint a free lawyer. The court explained that appointed counsel may be considered when a self-represented person’s claims appear likely to have substance and the case is too difficult for that person to handle alone.
The court found that the case was still at an early stage, the legal issues did not appear especially complex, and it could not yet determine that McFadden had a strong chance of success. Judge Nelson S. Roman therefore denied the request without prejudice, allowing McFadden to renew it later.
The detailed version
- McFadden v. Keyser · No. 7:23-cv-00802
- Nelson Roman
- Aug. 17, 2023
Background
Robert McFadden, who is incarcerated and proceeding without a lawyer, brought this action under 42 U.S.C. § 1983, a law that permits certain civil-rights claims against state actors, and the Religious Land Use and Institutionalized Persons Act. The claims concern events allegedly occurring at Sullivan Correctional Facility between 2019 and 2022. The order does not decide the merits of those claims.
The court had previously allowed McFadden to proceed without paying the filing fee up front. McFadden later asked the court to appoint free legal counsel.
Legal standard
The court explained that, in a civil case, it cannot require an attorney to represent an indigent person. Under 28 U.S.C. § 1915(e)(1), however, the court may ask its Pro Se Office to seek a volunteer attorney from the court’s pro bono panel.
Before doing so, the court must first consider whether the person’s position appears likely to have substance. If that threshold is met, the court may consider additional factors, including whether the person can obtain representation independently, whether the person can handle the case without assistance, the extent of factual investigation required, the complexity of the legal issues, and whether skilled cross-examination may be needed.
Court’s analysis
The court found that the proceedings were still in their early stages. The parties had not yet begun discovery or made summary-judgment motions. For that reason, the court could not conclude that McFadden was unable to handle the case without assistance. The court also could not determine that McFadden’s position showed a strong chance of success, and it did not find the legal issues particularly complex.
Ruling
The court found no circumstances warranting appointment of pro bono counsel at that time. Judge Nelson S. Roman denied McFadden’s request without prejudice to renewal at a later stage of the proceedings. The court also identified the New York Legal Assistance Group’s clinic as a possible source of limited-scope assistance, while explaining that the clinic is not part of the court and would not file papers for McFadden.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.