OLESON v. BUREAU OF PRISONS et al

Filing 71

OPINION AND ORDER denying 47 Motion to Appoint Pro Bono Counsel. Signed by Magistrate Judge Joel Schneider on 6/6/11. (js)

[Doc. No. 47]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ROBERT R. OLESON
Plaintiff,
v.
BUREAU OF PRISONS, et al.,
Defendants.

:
:
: Civil No. 09-5706 (NLH/JS)
:
:
:
:
:
:

OPINION AND ORDER
This matter is before the Court on the motion for appointment
of counsel [Doc. No. 47] filed by pro se plaintiff, Robert R.
Oleson.

Plaintiff is currently incarcerated and argues that

counsel should be appointed because he is “a paraplegic, limiting
his access to the law library as it is over a half mile to the
library, and he only has ten minutes to get there via a circuitous
route.”

Motion ¶ 7.1

Plaintiff contends that he has “filed some

140 exhibits with the Court, with more to come, demonstrating the
fact that his Constitutional rights were violated and continue to
be violated by the staff at F.C.I. Fort Dix, New Jersey.” Id. ¶ 9.
Additionally, plaintiff argues, “[t]he staff at F.C.I. Fort Dix are
1

Plaintiff further argues the Court should appoint counsel
to represent him because he is “unable to afford counsel; the
issues in this case are complex; plaintiff has a limited
knowledge of the law; the case contains several Constitutional
violations and legal claims asserted by plaintiff; [and] [the]
case involves medical issues that may require expert testimony.”
Motion ¶¶ 1-5.
1

making a concerted effort to thwart [his] efforts to prosecute his
case.”

Id. ¶ 10.

motion.

The

No opposition has been filed to plaintiff’s

Court

has

exercised

its

plaintiff’s motion without oral argument.
L. Civ. R. 78.1.

discretion

to

decide

See Fed. R. Civ. P. 78;

For the reasons to be discussed, plaintiff’s

motion is DENIED.
Plaintiff filed a Complaint on November 1, 2009 [Doc. No. 1]
asserting that Fort Dix officials violated his constitutional
rights by failing to replace his wheelchair, failing to relocate
him to a unit wherein the unit team is located on the first floor,
removing his shower shoes, blanket and other items from his cell,
requiring him to wait in the outside dining line in a wheelchair in
the rain, and deleting visitors from his visitor list.

See

Memorandum Opinion, The Honorable Noel L. Hillman, Doc. No. 27 at
1.

On January 14, 2010, Judge Hillman dismissed plaintiff’s

complaint without prejudice for plaintiff’s failure to exhaust
administrative remedies.

[Doc. No. 8].2

On May 10, 2010 this

Court denied as moot [Doc. No. 17] plaintiff’s Motion to Compel and
Motion for Appointment of Counsel [Docs. Nos. 11, 15] without
prejudice.

On plaintiff’s subsequent appeal to the United States

Court of Appeals for the Third Circuit, Judge Hillman’s August 18,

2

On August 18, 2010 Judge Hillman granted plaintiff’s Motion
for Reconsideration [Doc. No. 9] of his January 14, 2010 Order,
but nevertheless dismissed plaintiff’s complaint without
prejudice because of plaintiff’s alleged failure to exhaust
administrative remedies. [Doc. No. 28].
2

2010 Order was vacated and the case was remanded for further
proceedings.

[Doc. No. 40].

Upon remand, plaintiff filed the

present “Motion to Appoint Pro Bono Counsel” [Doc. No. 47], along
with his “Memorandum in Support of Motion to Appoint Pro Bono
Counsel.”

[Doc. No. 53].

Plaintiff’s present Motion to Appoint Pro Bono Counsel reiterates many of the allegations he made in his original complaint
and subsequent filings with the court.
contains nine (9) general allegations.

Plaintiff’s complaint

The Court will endeavor to

summarize those allegations here, so as to comprehensively address
the present motion.
First,

plaintiff

alleges

the

staff

at

F.C.I.

Fort

Dix

(hereinafter “staff”) refuse to provide the “proper forms” and
requests that blank administrative forms be provided. See Doc. No.
47-1

(hereinafter

“Brief”)

at

2-3.

Plaintiff

argues

the

withholding of the administrative remedy forms amounts to a First
Amendment violation.

See Doc. No. 53 (hereinafter “Supplemental

Brief” or “Supp. Brief”) at 1.
Second, plaintiff argues the staff stole his prescription
eyeglasses, refused to return them, and ignored his request for new
glasses. Brief at 6-7.3

Plaintiff asserts that “[d]epriving [him]

3

Plaintiff argues the delay in receiving new glasses, which
lasted over a year, caused him to suffer “daily
headaches...exacerbating his impaired vision...[and causing him]
anxiety attacks worrying about [his ability to] see all the ‘pot
holes’, cracks, misaligned cement slaps [sic], and defective
3

of his prescription eyeglasses violated his Eighth Amendment Right
[sic] to be free of cruel and unusual punishment....”

Supp. Brief

at 3.
Third, plaintiff claims defendant Thompson “took some legal
papers from [p]laintiff’s bed and disposed of them.”

Id. at 4; see

also Brief at 6. Plaintiff argues this amounts to a constitutional
violation, because “when prison officials seize and destroy legal
papers, it clearly states a claim of denial of access to the courts
. . . The right of access to the courts is substantive rather than
procedural.” Supp. Brief. at 5 (citing Wright v. Newsome, 795 F.2d
964 (11th Cir. 1986)).
Fourth, plaintiff complains of a “typographical error on [his]
security/designation data form.”
that

the

prison

officials’

Brief at 10.4

failure

to

Plaintiff argues

correct

the

error

demonstrates the officials’ “harassment and vindictive behavior in
retaliation
Amendment.

against

Plaintiff,”

in

violation

of

the

First

Supp. Brief at 6.

Fifth, plaintiff lists grievances concerning inoperable and
inaccessible

handicap

toilets

throughout

the

F.C.I.

Fort

Dix

facility, including a “handicap stall” that plaintiff claims was

approaches in the roadways and walkways....”
4

Id. at 9.

Plaintiff claims he has submitted “at least 16 documents”
requesting that a “typo” on the aforementioned form be corrected,
“as it states that Plaintiff has a warrant for his arrest from
the Country of Mexico.” Id.
4

used to store mops, buckets, brooms and scrub brushes during an
inspection by prison officials. See Brief at 14-22; see also Supp.
Brief at 7-8.

Plaintiff maintains that “[t]he denial of access to

handicap toilets violates the Eighth Amendment, the [F]ourteenth
Amendment, and Title II of the ADA.”

Id. at 7.

Sixth, plaintiff complains of what he terms his “quest for a
serviceable wheelchair.”

Brief at 23.

Plaintiff claims he was

assigned “an old dilapidated wheelchair that was designed for
indoor use only.”

Id.

After requesting a new chair on various

occasions, plaintiff alleges the “frame cracked and the right foot
board broke off.”

Id.

Plaintiff asserts that he has been

retaliated against for complaining about the condition of his
wheelchair,5

and

information

from

argues
Health

that

he

Services

has

received

Administrators

conflicting

regarding the

status of a new wheelchair that was ordered for him (to replace his
“for indoor use only” chair with a chair that is allegedly suitable
for

the

premises).

Id.

at

26-28.

According

to

plaintiff,

“[d]enying [him] a serviceable wheelchair” results in a violation
of the First, Eighth and Fourteenth Amendments. See Supp. Brief at
8.
Seventh, plaintiff complains of inaction relating to his

5

Plaintiff alleges that after requesting assistance from his
“Counselor/inmate liaison, Mr. Thompson,” Thompson “came into
[p]laintiff’s room and stole his eyeglasses, shower shoes, legal
papers and blanket.” Id. at 24.
5

requests for a transfer to a different facility.

Plaintiff states

he has sought a transfer because there are “no rehabilitation
programs for stroke patients at FCI Fort Dix.”6
Brief at 9.

Brief at 34; Supp.

Plaintiff has also sought a transfer to obtain better

educational opportunities.

Brief at 34-35.

Plaintiff states that

following his several requests, “no action was taken to get [him]
transferred
treatment

to

a

medical facility

constituting

where

he

deliberate/wanton

could

get

proper

indifference,

and

[p]laintiff asserts this was vindictive behavior on the part of the
aforementioned defendants in retaliation for [p]laintiff filing his
Civil Action and naming [defendants].”
Eighth,

plaintiff

alleges

that

Supp. Brief at 10.
several

of

the

walkways,

roadways and ramps at the facility are in violation of the Code of
Federal Regulations, amounting to an Eighth Amendment violation.
Id. at 13-14.
Ninth,
“[Corrections

plaintiff
Officers]

alleges

“wanton

Espanoza

indifference”

(phonetic),

Santos,

by

Picarro

(phonetic) et al,” where they ordered plaintiff and other prisoners
to

“sit

beneath

large

trees,

in

pools

of

water,

in

metal

wheelchairs, in the rain, on numerous occasions, under threat of
going to the ‘hole' (SHU).”

Id. at 14.

6

Plaintiff is seeking to be transferred to the “Federal
Medical Center in Lexington, Kentucky.” Brief at 34.

6

Plaintiff seeks appointment of legal counsel pursuant to 28
U.S.C. § 1915(e), under which the court may request an attorney to
represent an indigent plaintiff in a civil action.

The statute

provides in relevant part that:
(1) [t]he court may request an attorney to
represent any person unable to afford counsel.
(2) Notwithstanding any filing fee, or any
portion thereof, that may have been paid, the
court shall dismiss the case at any time if
the court determines that--(A) the allegation
of poverty is untrue; or (B) the action or
appeal--(i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief
against a defendant who is immune from such
relief.
§ 1915(e) (emphasis added).
under

this

provision

is

However, the appointment of counsel
a

privilege,

constitutional right of the litigant.
454, 456-57 (3d Cir. 1997).

not

a

statutory

or

Parham v. Johnson, 126 F.3d

Moreover, a court’s power to appoint

counsel pursuant to § 1915(e) lies in the sole discretion of the
court.

Id. at 457.

See also Tabron v. Grace, 6. F.3d 147, 155 (3d

Cir. 1993), cert. denied, 510 U.S. 1196 (1994).
As a preliminary matter, the court is required to determine
whether the “plaintiff’s claim . . . has some merit in fact and
law.”

Tabron, 6 F.3d at 155 (citations omitted).

If the court

finds the action is not frivolous and has merit, then several
factors are to be taken into consideration:
(1)
(2)

plaintiff’s ability to present his or her own defense;
the complexity of the legal issues;

7

(3)
(4)
(5)
(6)

the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue such
investigation;
the amount a case is likely to turn on credibility
determinations;
whether the case will require the testimony of expert
witnesses, and;
whether the plaintiff can attain and afford counsel on
his or her own behalf.

Tabron, 6 F.3d at 155-56, 157 n.5.
nor is any one factor determinative.

This list is not exhaustive,
Id. at 157.

See also Lasko

v. Watts, 373 Fed.Appx. 196, 200 (3d Cir. 2010), cert. denied, 2010
WL 3053871 (2010); Spruill v. Gillis, 328 Fed.Appx. 797, 800 (3d
Cir. 2009); Montgmery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002).
Courts should also consider practical constraints, such as “the
ever-growing number of prisoner civil rights actions filed each
year in federal courts; the lack of funding to pay appointed
counsel; and the limited supply of competent lawyers willing to
undertake such representation.”

Tabron, 6 F.3d at 157.

These

factors ensure that courts will only appoint counsel in nonfrivolous matters.

Parham, 126 F.3d at 461.

Thus, courts should

only consider appointment of counsel where a plaintiff’s case
appears to have merit and a weighing of the aforementioned factors
favors appointment.

Id.

Judge Hillman reviewed the threshold question of the merits of
plaintiff’s claims following the Third Circuit’s remand of the case
[Doc. No. 43] and found, “[d]ismissal of the Complaint is not
required

by

28

U.S.C.

§§

1915(e)(2)(B)

8

and

1915A

at

this

time....This Court will dismiss the Bureau of Prisons as defendant
and order service and the filing of a responsive pleading by the
remaining

defendants.”

Order

¶¶

5-6.

Because

it

has

been

determined that plaintiff’s complaint meets the threshold merit
requirement, consideration of the Tabron/Parham factors will now be
addressed.7

See Tabron, 6 F.3d at 155-56, 157 n.5; Parham, 126

F.3d at 457.
The

first

factor

for consideration

regarding

plaintiff’s

request for pro bono counsel is his ability to present his own
case.

In evaluating this factor, courts should consider the

plaintiff’s

education,

literacy,

prior

work

experience,

litigation experience and ability to understand English.

prior

Parham,

126 F.3d at 459 (citing Tabron, 6 F.3d at 156); Montgomery, 294
F.3d at 501.

If the plaintiff is a prisoner, the court should

consider the constraints placed upon him or her by confinement,
including the availability of typewriters, photocopiers, telephones
and computers.

Tabron, 6 F.3d at 156; Krider v. Heron, No. 06-3231

7

It is important to note that given the early stage of
litigation, “the factual and legal issues ‘have not been tested
or developed by the general course of litigation, making [a
number of factors] of Parham’s test particularly difficult to
evaluate.’” Mitchell v. Attorney Gen., No. 05-882 (RBK), 2005 WL
1106467, at *1 (D.N.J. Apr. 27, 2005) (quoting Chatterjee v.
Philadelphia Federation of Teachers, No. 99-4122, 2000 WL
1022979, at *1 (E.D.Pa. July 18, 2000) (stating that unlike
Parham, which concerned a directed verdict ruling, and Tabron,
which involved summary judgment adjudication, a plaintiff’s
claims asserted in a complaint and motions “have barely been
articulated” and are difficult to evaluate)).
9

(NLH), 2007 WL 2300709, at *2 (D.N.J. Aug. 3, 2007).

Plaintiff

maintains that he should be appointed counsel because he is “a
paraplegic, limiting his access to the law library as it is over a
half mile to the library, and he only has ten minutes to get there
via a circuitous route.”8

Motion ¶ 7.

Further, plaintiff asserts

that he is “a recovering stroke victim which has left him with a
diminished mental capacity, dyslexia and ADDS9 among other medical
conditions.”

Motion ¶ 15.10

While plaintiff’s lack of legal training may hinder his
ability to present his case, this situation is not unique to many

8

In addition to his general difficulty in accessing the law
library, plaintiff also notes that his “access to the law library
is further limited during inclement weather. Rain storms cause
the yard to be closed. Snowstorms makes [sic] it impossible for
wheelchair bound prisoners to go anywhere until the roadways,
walkways, ramps and approaches are cleared of snow.” Motion ¶ 8.
9

Plaintiff
clarification.
Court aware of
through use of

included this acronym without additional
The Court is not familiar with “ADDS,” nor is the
what “medical condition” plaintiff is referencing
the acronym.

10

In detailing his need for appointed counsel, plaintiff
notes that he has been receiving legal assistance from another
inmate who is “going home in March of 2011.” Supp. Brief at 16.
See also Motion ¶ 14 (“Plaintiff’s ‘jailhouse’ lawyer is being
transferred after the end of the year (2010) and without his
assistance, and that of appointed counsel, Plaintiff will be
further handicapped.”). Plaintiff did not cite to any factual
support for this statement such as an affidavit. However, even
if plaintiff’s claim is true it would not change the Court’s
ruling. Plaintiff submitted a Brief [Doc. No 62, “Reply to
Response to Motion for Leave to Supplement Plaintiff’s 42 U.S.C.
1983"] as late as March 18, 2011, which evinces no significant
change in his ability to represent himself. The Court assumes
plaintiff prepared the Reply and not his “jailhouse lawyer.”
10

pro

se

litigants.

Krider,

supra,

at

*2.

Further,

while

plaintiff’s health condition may put some burden on him that
distinguishes his position from other plaintiffs, the Court is
skeptical that he is significantly limited from visiting the law
library in view of the extensive case law he cited in his filings
with the Court.

In addition, plaintiff has presented a well

articulated and reasoned complaint, and has submitted all documents
in type.

See, e.g., “Plaintiff’s Statement of Facts in Support of

his Motion for Appointment of Counsel” [Doc. No. 47-1] (numbering
fifty-six

(56)

typed

pages

of

factual

allegations

and

analysis, including extensive case law citations).

legal

See also

“Memorandum of Law in Support of Plaintiff’s Motion for Appointment
of Counsel” [Doc. No. 53] (providing an example of a well reasoned,
eighteen (18) page typed submission). Plaintiff’s filings evidence
a

level

of

submissions.

sophistication
For

these

not

typically

reasons,

present

plaintiff

has

in

pro

thus

se
far

demonstrated his ability to represent himself in this litigation.
See Krider, supra, at *2.

See also Price v. Shineski, No. 09-2492

(FSH/MAS), 2010 WL 1573920, at *1 (D.N.J. April 16, 2010) (finding
that plaintiff demonstrated his capacity to adequately present his
own case through his complaint and motion to appoint counsel, which
clearly and articulately presented the legal claims, facts and
circumstances of his case).
Further,

plaintiff’s

status

11

as

a

paraplegic

does

not

necessarily warrant appointment of counsel.

In Logan v. United

States, No. 96-55042, 1996 WL 717087, at *1-2 (9th Cir. Dec. 6,
1996)(citing Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
1991)), a pro se plaintiff contended that he was negligently placed
in a private custodial facility ill-equipped to care for his needs
as a paraplegic awaiting trial.

The plaintiff also contended that

the district court erred by denying his motion for appointment of
counsel.

The Ninth Circuit affirmed the district court’s finding

that the plaintiff’s articulation of the claims was satisfactory
and that any need for evidentiary hearings or discovery did not
render the case complex.
Plaintiff’s case is also factually distinguishable from Maclin
v. Freake, 650 F.2d 885 (7th Cir. 1981) (abrogated by Farmer v.
Haas, 990 F.2d 319 (7th Cir. 1993)(discarding Maclin’s multifactor
test in favor of a more straightforward approach to deciding
motions for appointment of pro bono counsel)).11

In Maclin, the

court was faced with a state prisoner who was a paraplegic and who,
according to the limited record presented, had received no physical
therapy for his condition over a period of some eleven (11) months
since he entered prison.

See id.

The court ruled that since the

plaintiff was in no position to investigate facts germane to his

11

Despite the Seventh Circuit’s abrogation of Maclin, the
Third Circuit has continued to cite the case approvingly. See
Tabron v. Grace, 6 F.3d 147, 155-156 (3d Cir. 1993).
12

complaint, and he had not demonstrated a workable knowledge of the
legal process, the district court should have granted his request
for appointed counsel.
plaintiff

has

See id.

demonstrated

Unlike the plaintiff in Maclin,

his

ability

to

investigate

and

articulate the facts germane to his complaint, in addition to
demonstrating a relatively sophisticated knowledge of the legal
process.
The second factor for consideration is the complexity of the
legal issues presented.

Where the law is not clear, it will often

best serve the ends of justice to have both sides of a difficult
legal issue presented by those trained in legal analysis.
Parham,

126

comprehension

F.3d

at

alone

459;
does

Tabron,
not

equal

understanding into presentation.
supra, at *2.

6

F.3d
the

at

156.

ability

to

See

However,
translate

Parham, 126 F.3d at 459; Krider,

Although the ultimate issue may be comprehensible,

the Court must appreciate the complexity of the discovery involved.
Id.

At this stage, the complexity of the issues raised in the case

has not prevented plaintiff from sufficiently pursuing his claims.
Further, it appears that no procedural hurdles have hindered
plaintiff’s efforts to represent himself.
Appx. at 201.

See Lasko, 373 Fed.

In fact, plaintiff convinced the Third Circuit to

reverse the District Judge’s ruling.

See Oleson v. Bureau of

Prisons, No. 10–3650, 2011 WL 37809 (3d Cir. Jan. 6, 2011) (per
curiam).

In addition, the law applicable to plaintiff’s claims is

13

not especially complex.

Since it has not yet been shown that

plaintiff

significant

will

have

any

difficulty

regarding

the

complexity of the issues or discovery in the case, the second
factor weighs against the appointment of counsel.
The third factor for consideration is the degree to which
factual investigation will be necessary and the ability of the
plaintiff to pursue such investigation.

It has been noted that

“courts should consider a prisoner’s inability to gather facts
relevant to the proof of his claim.”
(citing Tabron, 6 F.3d at 156).

Montgomery, 294 F.3d at 503

“Courts should further consider

that ‘it may be difficult for indigent plaintiffs to understand the
complex discovery rules’ in investigating their claims.”
(citing Parham, 126 F.3d 460).

Id.

At this stage plaintiff has not

shown it will be unduly difficult for him to obtain the relevant
institutional records, which should be reasonably available.
Plaintiff can also take depositions if necessary.

Thus, it does

not appear discovery will be particularly burdensome. Unlike cases
where documents are missing and where defendants are resistant in
responding to discovery requests, this situation does not presently
exist in the case.

See, e.g., Montgomery, 294 F.3d at 503-504

(finding this factor in favor of granting pro bono counsel where
missing key records prevented plaintiff from building a sufficient
case

through

significant

document

resistance

requests
from

and

defendants

14

plaintiff
in

encountered

responding

to

his

discovery motions, including defendants’ failure to respond to
plaintiff’s interrogatories).

For these reasons, the third factor

weighs against appointment of counsel.
The fourth factor for consideration is whether a case is
likely to turn on credibility determinations.

Under this factor,

the Court should consider whether the case is largely based on the
word of one side against the word of the other side.
F.3d at 460.

Parham, 126

“Thus, when considering this factor, courts should

determine whether the case was solely a swearing contest.”

Id.

Because plaintiff’s claims are to a large extent premised on the
failure to provide institutional services (i.e. medical equipment,
handicap-accessible facilities), at the moment it appears unlikely
the case will turn on credibility determinations.12

Thus, the

fourth factor weighs against appointment of counsel.
The fifth factor for consideration is whether the case will
require the testimony of expert witnesses.

Appointment of counsel

may be warranted where the case will require testimony from expert
witnesses.

Tabron, 6 F.3d at 156.

Plaintiff asserts that “[t]his

case involves medical issues that may require expert testimony.”
Motion ¶ 5.

However, plaintiff does not describe what claim or

12

The Court notes that plaintiff has alleged retaliatory
tactics by the defendants. See Motion ¶¶ 10-13. Although
proving or defending such allegations may require credibility
determinations to be made, they do not, in themselves, warrant
appointment of counsel.
15

subject matter will necessitate such expert testimony.

Since the

substance and necessity of expert testimony has not yet been
established, the fifth factor weighs against appointing pro bono
counsel.
The sixth factor for consideration is whether plaintiff can
retain and afford counsel on his own behalf.

Parham, 126 F.3d at

461.

and,

Plaintiff

is

currently

incarcerated

representations, he cannot afford his own attorney.
1.

based

on

his

See Motion ¶

The Court accepts this as true, thus the sixth factor weighs in

favor of granting plaintiff’s motion.
Based

upon

the

Tabron/Parham

factors

and

the

facts

as

currently presented to the Court, and for the reasons discussed
above, a majority of factors weigh against granting plaintiff’s
motion.

In the Court’s view, the most significant factors to

consider at this time are that plaintiff has adeptly handled the
litigation and this case has not yet been shown to be especially
complex. In addition, it does not appear that plaintiff’s physical
condition materially interferes with his ability to pursue his
case. Therefore, plaintiff’s motion will be denied. However, this
Order is entered without prejudice to plaintiff’s right to re-file
his request for counsel if warranted by relevant developments.
Accordingly, for all the foregoing reasons,
IT IS hereby ORDERED this 6th day of June 2011 that

16

plaintiff’s Motion for Appointment of Pro Bono Counsel is DENIED.

/s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

17