Opinion
No. 05 Civ. 5906 (SHS) (HBP).
February 3, 2006
MEMORANDUM OPINION AND ORDER
By motion dated August 25, 2005 (Docket Item 7) and by an undocketed motion dated November 5, 2005, plaintiff, a pro se inmate, moves for pro bono counsel. For the reasons set forth below, the motion is granted.
In a civil case, such as this, the Court cannot actually "appoint" counsel for a litigant. Rather, in appropriate cases, the Court submits the case to a panel of volunteer attorneys. The members of the panel consider the case, and each decides whether he or she will volunteer to represent the plaintiff. If no panel member agrees to represent the plaintiff, there is nothing more the Court can do. See generally Mallard v. United States District Court, 490 U.S. 296 (1989). Thus, even in cases where the Court finds it is appropriate to request volunteer counsel, there is no guarantee that counsel will actually volunteer to represent plaintiff.
The factors to be considered in ruling on a motion for pro bono counsel are well settled and include "the merits of plaintiff's case, the plaintiff's ability to pay for private counsel, [plaintiff's] efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1986). Of these, "[t]he factor which command[s] the most attention [is] the merits."Id. Accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203 (S.D.N.Y. April 26, 1996). As noted fifteen years ago by the Court of Appeals:
Courts do not perform a useful service if they appoint a volunteer lawyer to a case which a private lawyer would not take if it were brought to his or her attention. Nor do courts perform a socially justified function when they request the services of a volunteer lawyer for a meritless case that no lawyer would take were the plaintiff not indigent.Cooper v. A. Sargenti Co., supra, 877 F.2d at 174. See also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) ("`In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance.'").
Plaintiff's complaint arises out of his allegation that he was beaten for no reason by defendants Edmonds and McCarthy. Plaintiff's complaint describes the alleged event as follows:
On April 17, 2003, I just arrived home to my wife [at] about 5:30 am[;] we had an argument so I just went back out the docr when two Officers: Edmonds and McCarthy "bum rushed me" and started beating on me with their black clubs. I tried to defend myself but they overtook me [and] continued beating on me.
Officer Edmonds repeatedly punched me in the face, nose, eyes and hit me with [what] I believe was a stick that they were using on me. I thought that [O]fficer Edmonds was going to kill me. Officer McCarthy kicked me in my side a couple of times. They picked me up and slammed me against the wall and Officer McCarthy held me while Officer Edmonds kept on beating on me with a fist too [sic] making me pass out. I Asked, "what[']s going on, why are you trying to hurt me for [sic]." But Officer Edmonds said: "shut up NIGGER."
My next door neighbor, Carlito and his wife; they also witnessed it because they lived opposite across from our door. Also, there [was] another witness who lived upstairs on the 4th floor, all witnesses lives [sic] at the same address my wife and I currently living now. [sic]
(Complaint ¶ II.D).
Obviously, at this time it is impossible to determine with confidence whether plaintiff's allegations have any substance. However, with the exception of his claim against the New York City Police Department, which is not a suable entity, there does not currently appear to be any legal obstacle to the claims, and if, as plaintiff claims, there are witnesses to the alleged incident, plaintiff may well have a triable case. In addition, since plaintiff is incarcerated, it is, as a practical matter, extremely difficult for him to prepare his case for trial.
There is an overwhelming body of case law holding that the New York City Police Department is not a suable entity. See, e.g., Nance v. New York City Police Dep't, 01 CV 424 (JB) (JMA), 2003 WL 1955164 at *1 (E.D.N.Y. Apr. 24, 2003); Basnight v. Rossi, 97-CV-1312 (JB), 2003 WL 722810 at *3 (E.D.N.Y. Mar. 4, 2003); Fieldcamp v. City of New York, 242 F. Supp.2d 388, 391 (S.D.N.Y. 2003); Connell v. City of New York, 230 F. Supp.2d 432, 433 n. 3 (S.D.N.Y. 2002); Bazile v. City of New York, 215 F. Supp.2d 354, 369 (S.D.N.Y. 2002); Montes v. King, 00 Civ. 4707 (RCC) (JCF), 2002 WL 424318 at *5 (S.D.N.Y. Mar. 19, 2002); Gonzalez v. City of New York, 98 Civ. 6081 (MBM), 2002 WL 252564 at *2 (S.D.N.Y. Feb. 21, 2002); Wilson v. City of New York, 800 F. Supp. 1098, 1101 (E.D.N.Y. 1992).
Accordingly, plaintiff's motion for counsel is granted. Plaintiff's case will be added to the list of cases circulated to the Court's Pro Bono Panel.
SO ORDERED.