Johnson v. Department of Corrections

Background

The plaintiff’s remaining claim is brought under 42 U.S.C. § 1983 and alleges First Amendment retaliation against Sergeant S. Petrie. According to the plaintiff, while incarcerated at Downstate Correctional Facility, Petrie forced him to sell illicit drugs to other incarcerated people and send the proceeds to Petrie in Bitcoin. The plaintiff alleges that after he said he would no longer sell drugs at the facility, Petrie retaliated by filing a false misbehavior report and placing him in segregated housing. The court had dismissed the plaintiff’s other claims.

The plaintiff had been allowed to proceed without paying court fees, so the court treated him as unable to afford counsel. He requested appointment of pro bono counsel, meaning a volunteer lawyer, for the case.

Reasoning

The court applied the factors from Hodge v. Police Officers for deciding whether to seek volunteer counsel in a civil case. Those factors include whether the claim appears likely to have substance, the litigant’s ability to investigate and present the case, whether conflicting testimony will require cross-examination, and the complexity or other special circumstances of the case.

The court determined that the retaliation claim was likely to be of substance. The defendants had moved for summary judgment, arguing that the plaintiff had not exhausted available administrative remedies as required by the Prison Litigation Reform Act. The court found a genuine dispute about whether the plaintiff should be excused from that requirement and therefore determined that an evidentiary hearing on exhaustion was necessary.

The court concluded that witness credibility would be central at the hearing and that effective cross-examination would be important. It also found that the plaintiff’s incarceration created additional difficulties in preparing for the proceeding. These circumstances led the court to conclude that representation would help produce a quicker and fairer result.

Order

Judge Vincent L. Briccetti granted the plaintiff’s request for pro bono counsel. The clerk was directed to seek a volunteer lawyer to enter a limited appearance for the purpose of representing the plaintiff at the evidentiary hearing concerning exhaustion of administrative remedies. Any volunteer lawyer must file a Notice of Appearance as Pro Bono Counsel.

The representation will not extend beyond the matters described in the order unless the court requests continued representation and the lawyer agrees. After the lawyer files a Notice of Completion, the representation will end and the lawyer will have no further responsibilities to the plaintiff or the court in this matter.

The court certified that any appeal from the order would not be taken in good faith and denied permission to proceed without paying fees for purposes of an appeal.