SMART v. COUNTY OF BURLINGTON et al

Filing 28

MEMORANDUM AND ORDER permitting the Second Amended Complaint to proceed; directing the Clerk to issue summons for USM to serve the 22 second amended complaint upon Defts Board of Chosen Freeholders of County of Burlington, Burlington County Department of Corrections and Captain McDowell. Pltfs request for class certification and appointment of Counsel are DENIED W/OUT PREJUDICE. Signed by Judge Robert B. Kugler on 3/31/2015. (drw)n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
SALAHUDDIN F. SMART,
:
:
Plaintiff,
:
Civ. No. 13-0354 (RBK) (JS)
:
v.
:
MEMORANDUM AND ORDER
:
COUNTY OF BURLINGTON, et al.,
:
:
Defendants.
:
_________________________________________ :
Plaintiff was previously detained at the Burlington County Detention Center. He is
proceeding pro se with a second amended civil rights complaint filed pursuant to 42 U.S.C. §
1983. Plaintiff’s application to proceed in forma pauperis was previously granted. Upon
screening the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B), the Court has determined that
the complaint shall be permitted to proceed against the named defendants in the second amended
complaint. 1
Plaintiff has requested that this Court certify this matter as a class action. To satisfy
Federal Rule of Civil Procedure 23(a), (1) the class must be “so numerous that joinder of all
members is impracticable” (numerosity); (2) there must be “questions of law or fact common to
the class” (commonality); (3) “the claims or defenses of the representative parties” must be
“typical of the claims or defenses of the class” (typicality); and (4) the named plaintiffs must
“fairly and adequately protect the interests of the class” (adequacy of representation, or simply
adequacy). FED. R. CIV. P. 23(a). “[T]he requirements set out in Rule 23 are not mere pleading
rules.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 316 (3d Cir. 2009). The party

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Plaintiff also names “John Doe” defendants in his second amended complaint. Plaintiff can
seek to amend his second amended complaint with the names of these John Doe defendants once
their identity is discovered.
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seeking certification bears the burden of establishing each element of Rule 23 by a
preponderance of the evidence. See id. at 307. In this case, plaintiff has not made any arguments
in support of their motion for class certification, but instead simply requests this Court certify
this matter as a class action. This is plainly insufficient to certify a class action. Moreover, pro
se litigants are generally not appropriate as class representatives. See Hagan v. Rogers, 570 F.3d
146, 159 (3d Cir. 2009). Thus, the request for class certification will be denied without
prejudice.
Plaintiff has also requested the appointment of counsel. Indigent persons raising civil
rights claims have no absolute right to counsel. See Parham v. Johnson, 126 F.3d 454, 456-57
(3d Cir. 1997). As a threshold matter, there must be some merit in fact or law to the claims the
plaintiff is attempting to assert. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). In
determining whether to appoint counsel, a court considers the following: (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; and (6) whether the plaintiff can attain
and afford counsel on his own behalf. See id. at 155-56, 157 n.5; see also Cuevas v. United
States, 422 F. App’x 142, 144-45 (3d Cir. 2011) (per curaim) (reiterating the Tabron factors).
Analyzing all of these factors, the Court will deny plaintiff’s request for the appointment
of counsel without prejudice. The complaint has now been screened, but it is still difficult to
analyze the Tabron factors at this early stage. See Miller v. New Jersey Dep’t of Corr., No. 083335, 2009 WL 482379, at *15 (D.N.J. Feb. 25, 2009) (citing Chatterjee v. Phila. Fed’n of
Teachers, Nos. 99-4122, 99-4233, 2000 WL 1022979 (E.D. Pa. July 18, 2000). Furthermore, it

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is worth noting that the complaint is fairly short and easy to follow. Additionally, the claims are
not overly complex and plaintiff is now longer incarcerated.
Accordingly, IT IS this 31st day of March_, 2015,
ORDERED that the second amended complaint shall be permitted to proceed; and it is
further
ORDERED that pursuant to 28 U.S.C. § 1915(d), the Clerk shall issue a summons and
the U.S. Marshal shall serve the summons and copies of the second amended complaint (Dkt.
No. 22.) and this Order upon the named defendants (Board of Chosen Freeholders of County of
Burlington, Burlington County Department of Corrections and Captain McDowell), with all
costs of service advanced by the United States; and it is further
ORDERED pursuant to 42 U.S.C. § 1997e(g)(2) that the named defendants shall file and
serve a responsive pleading within the time specified by FED. R. CIV. P. 12; and it is further
ORDERED that plaintiff’s requests for class certification and appointment of counsel are
denied without prejudice; and it is further
ORDERED that the Clerk shall serve this Memorandum and Order on plaintiff by regular
U.S. mail.

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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