DIPPOLITO v. THE UNITED STATES OF AMERICA et al
MEMORANDUM OPINION AND ORDER Denying 27 Motion to Appoint Pro Bono Counsel. Signed by Magistrate Judge Joel Schneider on 3/11/15. (js)
[Doc. No. 27]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA, et al., :
Civil No. 13-175 (RBK/JS)
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the “Motion to Appoint Pro
Bono [Counsel]” (“Motion”) [Doc. No. 27] filed by pro se plaintiff,
Frank Dippolito. No opposition has been filed. The Court exercises
its discretion to decide plaintiff’s motion without oral argument.
See Fed. R. Civ. P. 78; L. Civ. R. 78.1. For the reasons to be
discussed, plaintiff’s motion is DENIED.
Plaintiff, a former inmate at the Fort Dix Federal Corrections
Institution (“FCI Fort Dix”), seeks the appointment of counsel to
represent him in his civil action asserting claims pursuant to 42
U.S.C. § 1983. See Am. Compl. [Doc. No. 13]. Plaintiff commenced
this action against the United States, the Federal Bureau of
Prisons (FBOP), the U.S. Attorney General, ten FBOP employees,
twenty-one FCI Fort Dix employees, the United States Inspector
General for FBOP, the American Correctional Association, and the
Executive Director of the American Correctional Association on
January 10, 2013. Id.
In sum and substance, plaintiff alleges that defendants acted
with actual knowledge and deliberate indifference to the safety
plaintiff alleges that he suffered injury from a variety of
paint, a polluted water supply, exposure to high noise levels from
the personal address (PA) system, and fire hazards. Am. Compl. at
opportunity to advise” every government office of the offenses,
defendants did not take any action in response. Am. Compl. ¶ 3.
Additionally, plaintiff alleges that when he should have been
considered for removal to a halfway house in accord with the Second
Chance Act of 2007 and requested an interview, the Bureau of
Prisons “failed to create the regulations mandated by Congress.”
Am. Compl. ¶ 4.
On July 14, 2014, defendants James A. Gondles Jr. and the
plaintiff’s complaint [Doc. No. 17], which plaintiff opposed.
[Doc. No. 18]. Plaintiff subsequently filed the present motion to
appoint pro bono counsel on November 25, 2014. [Doc. No. 27]. On
December 3, 2014, defendant Charles E. Samuels, Jr., et al., filed
a Motion for Judgment on the Pleadings. [Doc. No. 29]. On February
5, 2015, plaintiff filed a motion to amend his complaint [Doc. No.
40], which the court denied because plaintiff failed to attach a
copy of his proposed amended pleading. See Feb. 6, 2015 Order [Doc.
No. 41]. Plaintiff subsequently filed a motion for leave to file
a second amendment complaint on March 2, 2015. [Doc. No. 42].
Plaintiff seeks appointment of legal counsel pursuant to 28
U.S.C. § 1915(e). The court may, pursuant to § 1915(e), 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
U.S.C. § 1915(e). District courts have broad discretion to request
counsel for indigent pro se litigants, but such appointment is a
privilege, not a statutory or constitutional right of the litigant.
Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011) (citation
omitted); Montgomery v. Pinchak, 294 F.2d 492, 498 (3d Cir. 2002);
see also Speller v. Ciccero, C.A. No. 13-1258 (KM), 2013 WL
1121377, at *1 (D.N.J. Mar. 12, 2013).
The decision to appoint pro bono counsel involves a two-step
analysis. First, a court must determine as a threshold matter
whether plaintiff’s claim has “some merit in fact and law.” Tabron
v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). If a court finds that
following factors (hereafter, the Tabron/Parham 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
(4) the amount a case is likely to turn on
(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 is not exhaustive, nor is
any one factor determinative. Id. at 458. Rather, the Tabron/Parham
factors should serve as a guidepost to ensure that courts will
only appoint counsel in non-frivolous matters. Id.
For the purpose of the present motion, the Court finds that
immediate dismissal. In granting plaintiff leave to proceed in
forma pauperis, Judge Kugler performed a threshold analysis of the
frivolous. See generally July 11, 2013 Order [Doc. No. 4]. Thus,
the Court will proceed to examine the Tabron/Parham factors.
[Tabron/Parham] factors” for consideration, is the plaintiff’s
ability to present his or her own case. Montgomery, 294 F.3d at
501. There are a number of factors a court should evaluate to make
this determination, including the plaintiff’s literacy, education,
ability to understand English, prior work experience, and prior
litigation experience. Tabron, 6 F.3d at 156. If a pro se plaintiff
is incarcerated, a court should additionally consider constraints
caused by detention, such as whether photocopiers, telephones, and
computers are made available to the prisoner plaintiff’s use. Id.
This factor weighs against appointing counsel if a court ultimately
concludes that a plaintiff has the baseline ability to adequately
present his case. See Gordon v. Gonzalez, 232 Fed. Appx. 153, 157
(3d Cir. 2007).
In the present motion, plaintiff has not indicated that he
requires assistance based on his literacy, education, or language
ability. In addition, the Court finds that plaintiff’s filings to
date demonstrate that he has sufficient abilities to represent
himself. For example, plaintiff has opposed motions [Doc. No. 18],
filed motions to amend his complaint [Doc. Nos. 8, 42], and
successfully obtained extensions of time [Doc. Nos. 10, 12, 35].
In addition, plaintiff’s original complaint and amended complaint
plaintiff’s demonstrated abilities, the Court finds the first
Tabron/Parham factor weighs against the appointment of counsel.
The second factor for consideration is the complexity of the
legal issues presented. A court should be more inclined to appoint
counsel when the legal issues are complex. See Tabron, 6 F.3d at
156 (“[W]here 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.”) (quoting Maclin v.
Freake, 650 F.2d 885, 889 (7th Cir. 1981)). The present case
conditions at FCI Fort Dix. The case also concerns procedures
governing plaintiff’s removal to a halfway house. The Court does
not find these legal issues to be unduly complex. Accordingly, the
second Tabron/Parham factor weighs against the appointment of
The third factor is the degree to which factual investigation
will be necessary and the ability of the plaintiff to pursue such
discovery and compliance with complex discovery rules, appointment
of counsel may be warranted. Tabron, 6 F.3d at 156. Plaintiff
argues that he requires a lawyer because the action requires him
to depose defendants. Plaintiff alleges that prison rules forbid
possessing certain discovery materials.1 Consequently, plaintiff
argues that counsel must be appointed so that he can “properly
prosecute this case.” Mot. for Appointment of Counsel at 1 [Doc.
No. 1-3]. The Court discounts plaintiff’s arguments. Plaintiff has
not cited any prison rules or regulations prohibiting him from
conducting depositions. Further, plaintiff has not demonstrated
that oral depositions are necessary in the case. See McKeithan v.
Jones, 212 Fed. Appx. 129, 131 (3d Cir. 2007) (denying inmate’s
request for oral depositions of prison officials because written
depositions were sufficient); Bell v. Godinez, C.A. No. 92-8447,
1995 WL 519970, at *2 (N.D. Ill. Aug. 30, 1995) (“No doubt a
prisoner has the right to take discovery, but that right does not
officials if there are compelling reasons weighing against such
depositions and if the prisoner is able to obtain the necessary
attached relevant exhibits to his amended complaint, including,
inter alia, incident reports, affidavits, and correspondence with
1 Plaintiff does not specify which defendants he seeks to depose.
demonstrated abilities in obtaining and filing these documents,
the Court finds the third Tabron/Parham factor weighs against the
appointment of counsel.
The fourth factor for consideration is whether a case is
likely to turn on credibility determinations. Though most cases
turn on credibility determinations, this factor weighs towards
appointing counsel if the case is “solely a swearing contest.”
Parham, 126 F.3d at 460. Therefore, a court should be aware of
“the degree to which credibility is at issue.” Wassell v. Younkin,
C.A. No. 07-326, 2008 WL 73658, at *4 (W.D. Pa. Jan. 7, 2008). To
date, plaintiff has not shown that his case will be “solely a
swearing contest.” Therefore, the Court finds that the fourth
Tabron/Parham factor weighs against the appointment of counsel.
The fifth factor for consideration is the extent to which
witnesses. Tabron, 6 F.3d at 156. However, the Third Circuit
clarified that the appointment of counsel is not required in every
case in which expert testimony may be warranted. See Lasko v.
Watts, 373 Fed. Appx. 196, 202 (3d Cir. 2010). Based upon the
information available to the Court at the present time, the Court
cannot determine whether plaintiff will require expert testimony.
Therefore, the Court finds that the fifth Tabron/Parham factor is
The final factor addressed by the Third Circuit in Tabron and
Parham is plaintiff’s financial ability to attain and afford
counsel on his own behalf. Parham, 126 F.3d at 461. In light of
Judge Kugler’s decision to grant plaintiff leave to proceed in
forma pauperis, and the trust account statements from FCI Fort Dix
submitted by plaintiff (see [Doc. No. 1-1]), the Court finds that
against the appointment of counsel, the Court denies plaintiff’s
plaintiff appears to be able to competently represent himself,
discovery, and the case does not present unduly complex legal or
factual issues. This Order, however, is entered without prejudice
warranted by relevant developments. Accordingly, for the foregoing
IT IS hereby ORDERED this 11th day of March, 2015, that
plaintiff’s “Motion to Appoint Pro Bono [Counsel]” [Doc. No. 27]
/s/ Joel Schneider
United States Magistrate Judge
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