HOPKINS v. BONDISKEY et al
Filing
118
MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 8/12/2015. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SHANE HOPKINS,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 12-5134 (JBS/JS)
v.
SCOTT MEDIO, et al.,
MEMORANDUM OPINION
Defendants.
SIMANDLE, Chief Judge:
This matter comes before the Court on Plaintiff Shane
Hopkins’ appeal [Docket Item 100] of Magistrate Judge Joel
Schneider’s May 12, 2015 Order [Docket Item 96] denying
Plaintiff’s second motion to appoint pro bono counsel. The Court
will affirm the May 12, 2015 Order because the Court finds that
the factors articulated in Tabron v. Grace, 6 F.3d 147 (3d Cir.
1993) weigh against the appointment of counsel in this case, and
Judge Schneider’s denial of Plaintiff’s motion to appoint
counsel was neither clearly erroneous nor an abuse of
discretion. The Court finds as follows:
1.
The Court need not repeat the facts and procedural
history of this case, which are detailed at length in this
Court’s March 31, 2015 Opinion addressing Defendants’ motion for
summary judgment. [Docket Item 90.] It is sufficient to note
that Plaintiff in this action asserts claims based on alleged
misconduct by various administrators and employees of the
Atlantic County Justice Facility (“ACJF”). Following opinions of
this Court addressing sua sponte screening under 28 U.S.C. §
1915(e)(2) [Docket Item 5], Plaintiff’s motion to amend [Docket
Item 46], and Defendants’ motion for summary judgment [Docket
Item 90], Plaintiff’s only remaining claims are those for
excessive force, failure to intervene, and retaliation.1 [Docket
Item 90.] These remaining claims are based on the same
underlying allegations regarding a violent altercation between
Plaintiff and certain correctional officers at ACJF on January
14, 2011 during which Plaintiff contends that the officers,
without provocation, grabbed him by the throat, threw him to the
cell floor, shackled him, then used his head and face as a
“battering ram” against the cell wall.
2.
Plaintiff filed his first motion to appoint counsel on
October 24, 2013 [Docket Item 38], which Judge Schneider denied
on January 14, 2014 [Docket Item 53]. Soon after this Court
granted in part and denied in part Defendants’ motion for
summary judgment, Plaintiff filed his second motion to appoint
counsel on April 20, 2015 [Docket Item 92], which Judge
Schneider denied without prejudice by Order entered May 12, 2015
[Docket Item 96]. Judge Schneider reviewed the Tabron factors
1
Plaintiff maintains that Officers Medio and Almeida retaliated
against him for filing grievances about the alleged assault.
2
and found that they uniformly weighed against the appointment of
counsel except for Plaintiff’s ability to attain and afford
counsel which weighed in favor of appointing counsel. Judge
Schneider construed a late submission in support of Plaintiff’s
motion to appoint counsel as a request for reconsideration and
denied same for failure to present any new facts or law as
required to alter the May 12, 2015 Order. [Docket Item 101.]
This appeal followed. [Docket Item 100.] Because Plaintiff in
his initial submission failed to identify the basis of his
objection to Judge Schneider’s Order, the Court directed
Plaintiff to file a brief articulating the basis of his appeal.
[Docket Item 102.] Plaintiff filed a brief in accordance with
the Court’s directive [Docket Item 105] and Defendants filed
opposition [Docket Item 114].
3.
Plaintiff in this appeal argues that the Court should
appoint pro bono counsel because this case is complex, calls for
extensive questioning, and necessarily turns on credibility
determinations. Plaintiff also contends that he lacks the
education and experience necessary to present his case, he has
had difficulty engaging in discovery due to his incarceration,
and expert testimony might be required to establish the extent
of his injuries. Defendants note in response that appointment of
counsel rests in the Court’s discretion and Plaintiff is not
entitled by right to pro bono counsel. Defendants argue that
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Plaintiff’s many submissions to the court in this matter
indicate a more-than-adequate ability to present his case.
Defendants reject Plaintiff’s assertion that he has been unable
to engage in discovery and note that the outcome will turn on
objective evidence in the record, not just witness testimony.
Defendants further maintain that neither party has submitted an
expert report and Plaintiff has provided no evidence regarding
his attempt to obtain counsel.
4.
When a magistrate judge decides a non-dispositive
motion, the “district court may modify the magistrate’s order
only if the district court finds that the magistrate’s ruling
was clearly erroneous or contrary to law.” Cipollone v. Liggett
Group, Inc., 785 F.2d 1108, 1120 (3d Cir. 1986); see also L.
Civ. R. 72.1(c)(A)(1) (“A Judge shall consider the appeal . . .
and set aside any portion of the Magistrate Judge’s order found
to be clearly erroneous or contrary to law.”).2
2
Plaintiff requests de novo review of Judge Schneider’s May 12,
2015 Order and Defendants appear to agree that this is the
appropriate standard of review. However, the standard of review
applicable in this District to decisions on non-dispositive
motions, including motions for appointment of counsel, is
whether the Magistrate Judge’s order was “clearly erroneous or
contrary to law.” L. Civ. R. 72.1c(1)(A). See also Tabron v.
Grace, 6 F.3d 147, 155 n.4 (3d Cir. 1993) (“[B]ecause 28 U.S.C.
§ 1915(d) gives the district courts broad discretion to appoint
counsel, the courts of appeals should reverse that exercise of
discretion only where the party seeking appointment has shown
that the district court's decision not to appoint counsel was
clearly an abuse of discretion.”); Christy v. Robinson, 216 F.
Supp. 2d 398, 406 (D.N.J. 2002) (“A district court’s exercise of
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5.
A magistrate judge’s finding is clearly erroneous when
“although there may be some evidence to support it, the
reviewing court, after considering the entirety of the evidence,
is ‘left with the definite and firm conviction that a mistake
has been committed.’” Kounelis v. Sherrer, 529 F. Supp. 2d 503,
518 (D.N.J. 2008) (quoting Dome Petroleum Ltd. v. Emp’rs Mut.
Liab. Ins. Co., 131 F.R.D. 63, 65 (D.N.J. 1990); United States
v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). A ruling is
contrary to law if “the magistrate judge has misinterpreted or
misapplied applicable law.” Id. Where a magistrate judge “is
authorized to exercise his or her discretion, the decision will
be reversed only for an abuse of discretion.” Id.
6.
In the present case, Judge Schneider’s denial of
Plaintiff’s motion to appoint counsel was neither clearly
erroneous nor an abuse of discretion. Judge Schneider correctly
identified and applied the relevant legal rules. As noted by
Judge Schneider, Plaintiff sought appointment of counsel under
28 U.S.C. § 1915(e), which provides that “[t]he court may
request an attorney to represent any person unable to afford
counsel.” 28 U.S.C. § 1915(e)(1). District courts retain
considerable discretion to request counsel for a plaintiff
its power to appoint counsel in civil cases is reviewable under
the abuse of discretion standard.”). Regardless of the standard
of review, the Court finds that Plaintiff’s appeal must be
denied and Judge Schneider’s Order affirmed.
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proceeding in forma pauperis. Brightwell v. Lehman, 637 F.3d
187, 192 (3d Cir. 2011). Appointment of counsel is a privilege,
not a statutory or constitutional right. Id. Courts, in deciding
whether to appoint pro bono counsel, first must consider whether
plaintiff’s claim “has some merit in fact and law.” Tabron v.
Grace, 6 F.3d 147, 155 (3d Cir. 1993) (quotation omitted). If
the court finds that it does, the court should consider the
following factors:
(1) the plaintiff's ability to present his or her own case;
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue such
investigation;
(4) the amount a case is likely to turn on credibility
determinations;
(5) whether the case will require the testimony of expert
witnesses;
(6) whether the plaintiff can attain and afford counsel on
his own behalf.
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997) (citing
Tabron, 6 F.3d at 155-56, 157 n.5). This list of factors is not
exhaustive, nor is a single factor determinative. Id. at 458.
Instead, the factors serve as guideposts for district courts to
ensure valuable attorney time is not “wasted on frivolous
cases.” Id.
7.
Judge Schneider correctly noted that based on this
Court’s denial of Defendants’ motion for summary judgment on
Plaintiff’s excessive force, failure to intervene, and
retaliation claims, Plaintiff’s claims appear to have some merit
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in fact and law. The Court finds that Judge Schneider’s
subsequent analysis of the Tabron factors was neither clearly
erroneous nor an abuse of discretion. The Court agrees with
Judge Schneider as to the first factor that Plaintiff’s
demonstrated ability to present his case weighs against the
appointment of counsel. Plaintiff’s argument that he lacks the
education or experience to sufficiently pursue his claims is
belied by his many detailed and well-composed filings in this
case, including his brief in support of this appeal which is
thorough, well-written, and well-supported by citations to legal
authority. See Dippolito v. United States, Civ. 13-175 (RBK/JS),
2015 WL 1104813, at *2 (D.N.J. Mar. 11, 2015). Plaintiff has
represented himself in at least two other federal cases in which
motions for appointment of counsel were denied. As this case
proceeds to trial, the Court is confident based on Plaintiff’s
conduct in this litigation thus far that he possesses the
education, experience, and skill necessary to present his case
to a jury.
8.
Judge Schneider’s conclusion as to the second factor
was neither clearly erroneous nor an abuse of discretion. As
Judge Schneider found, Plaintiff’s remaining claims are not
particularly complex. They revolve around a single incident
during which he was alleged assaulted by the defendant
correctional officers. See Nadal v. Christie, Civ. 13-5447
7
(RBK), 2013 WL 6331058, at *3 (D.N.J. Dec. 4, 2013) (noting that
plaintiff’s claims emanate from a single set of facts).
Plaintiff’s submissions throughout this case have demonstrated
an understanding of the relevant legal issues and a command of
the factual record. Moreover, Plaintiff’s claims for excessive
force, failure to intervene, and retaliation turn on significant
factual disputes as opposed to nuanced legal arguments.
Consequently, Judge Schneider did not err in finding that this
factor weighed against appointment of counsel.
9.
The Court finds similarly as to the third factor
regarding Plaintiff’s ability to pursue factual investigation.
Judge Schneider’s opinion is particularly persuasive on this
point as he handled discovery-related matters throughout this
litigation. Defendants continue to maintain that they have
provided Plaintiff with full and complete discovery and
responded to his numerous discovery requests. Plaintiff now
identifies a number of police officers with whom he allegedly
interacted before and after the January 14, 2011 incident.
Plaintiff asserts that he has not had an opportunity to subpoena
or depose these officers due to his incarceration. However,
Plaintiff’s incarceration has not prevented him from engaging in
discovery. See Abuhouran v. United States, 389 F. App'x 179, 182
(3d Cir. 2010) (noting that incarcerated plaintiffs may face
hardships in prosecuting their cases, but “the mere fact that a
8
litigant is indigent or imprisoned does not entitle him to the
appointment of counsel under 28 U.S.C. § 1915(e)(1)”); Davis v.
Two Unknown Named Agents Of F.B.I., Civ. 07-2135 (FSH), 2007 WL
3349494, at *1 n.5 (D.N.J. Nov. 7, 2007) (“[D]iscovery is not
necessarily constrained by Plaintiff's incarceration.”).
Although Plaintiff may have encountered some challenges in the
discovery process on account of his incarceration, Plaintiff’s
ability to pursue discovery overall does not weigh in favor of
appointing counsel.
10.
The fourth factor also weighs in favor of denying
Plaintiff’s motion and denying the instant appeal. As Judge
Schneider observed, this case is not “solely a swearing contest”
because the record includes substantial evidence beyond witness
testimony including objective medical evidence, video,
photographs, and written reports. Parham v. Johnson, 126 F.3d
454, 460 (3d Cir. 1997). Plaintiff admits as much by noting that
“a fair amount of the facts in this case are contained on video
recordings.”3 (Pl. Br. at 4.) Moreover, this Court agrees with
Judge Schneider that Plaintiff has not explained why crossexamining Defendants might pose a significant challenge. As
noted above, Plaintiff’s handling of this case to this point
3
The Court is unpersuaded by Plaintiff’s argument that security
concerns will restrict his ability to pause and rewind videos at
trial.
9
suggests a firm grasp of the issues and an ability to
competently present them to the Court and the jury. Therefore,
the Court finds no error in Judge Schneider’s consideration of
the fourth Tabron factor.
11.
Likewise, Judge Schneider’s analysis of the fifth
factor was neither clearly erroneous nor an abuse of discretion.
Plaintiff in support of his appeal again argues that expert
testimony may be required to present his claims. However,
neither party has presented an expert report. See Clinton v.
Jersey City Police Dep’t, Civ. 07-5686 (KSH), 2009 WL 2230938,
at *1 (D.N.J. July 24, 2009) (noting absence of expert
disclosures). As such, the Court agrees with Judge Schneider
that this factor cannot weigh in favor of appointing counsel.
12.
The Court also agrees with Judge Schneider’s decision
as to the final factor. Judge Schneider reasoned that this
Court’s decision to allow Plaintiff to proceed in forma pauperis
suggests that he is unable to afford counsel. Although
Defendants note that many personal injury cases proceed on a
contingency basis and Plaintiff has failed to offer any evidence
regarding his efforts to obtain counsel, the Court finds no
error in Judge Schneider’s determination that Plaintiff’s
ability to secure counsel could have been significantly hindered
by his indigent status. See Montgomery v. Pinchak, 294 F.3d 492,
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505 (3d Cir. 2002). Consequently, this factor weights in favor
of appointing counsel as Judge Schneider found.
13.
In light of the foregoing, the Court finds that the
Tabron factors weigh against the appointment of counsel in this
case and the Court will affirm Judge Schneider’s May 12, 2015
Order denying Plaintiff’s motion to appoint pro bono counsel.
August 12, 2015
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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