Hop Wah v. Crosby

Background

John T. Hop Wah, proceeding without a lawyer, brought this action under 42 U.S.C. § 1983. The opinion identifies his remaining claims as false arrest and malicious prosecution arising from an arrest on or about December 16, 2011, and identifies Adeyemi Adebola and Cordell Crosby as the two remaining defendants. The court had granted Hop Wah permission to proceed without prepaying filing fees.

Hop Wah asked the court to request a volunteer lawyer to represent him. In civil cases, the court explained, it may request that an attorney volunteer but cannot require an attorney to serve or provide public funds for the representation. Requests for volunteer counsel therefore must be considered sparingly.

Legal standard

Under 28 U.S.C. § 1915(e)(1), an indigent civil litigant may ask the court to request volunteer counsel. The court first considers whether the litigant is indigent and whether the claims appear likely to have legal substance. If those requirements are met, the court considers additional factors, including the person’s ability to investigate facts, whether conflicting evidence will require cross-examination, the complexity of the legal issues, the person’s ability to present the case, efforts to obtain counsel, and whether counsel would be more likely to produce a fair result.

Application

The court found that Hop Wah qualified as indigent because he had successfully obtained permission to proceed without prepaying fees. But, based on the record then available, the court could not say that his claims appeared likely to have legal substance.

First, the court said the claims arising from the 2011 arrest might be barred by the applicable limitations period. It described the limitations period for these Section 1983 arrest and prosecution claims as generally three years under New York law. It also noted that a malicious-prosecution claim generally begins to accrue when the related criminal proceeding ends favorably for the plaintiff.

Second, the court said it was not clear from the complaint or amended complaint that Hop Wah had pleaded all required elements of his claims. For malicious prosecution, the court identified four elements under New York law: initiation or continuation of a criminal proceeding, a favorable termination, lack of probable cause, and actual malice.

The court also found that Hop Wah appeared sufficiently able to investigate the facts as the case developed, based on his filings. Because the case involved limited claims and parties, the court found no special factors supporting a request for counsel. It further found that Hop Wah had not shown that he could not research or present his case or that counsel would be more likely to lead to a fair result.

Disposition

The court denied without prejudice Hop Wah’s request for the appointment of pro bono counsel. The opinion did not decide the ultimate merits of the false-arrest or malicious-prosecution claims.