ORTIZ v. THE STATE OF NEW JERSEY et al

Filing 39

MEMORANDUM OPINION AND ORDER: ORDER denying without prejudice 36 Motion to Appoint Counsel. Signed by Judge Robert B. Kugler on 12/8/2014. (tf, n.m.)

NOT FOR PUBLICATION

(Doc. No. 36)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
CARLOS ORTIZ,
:
:
Plaintiff,
: Civil No. 13-5372 (RBK)
:
v.
:
:
STATE OF NEW JERSEY et al.,
:
:
Defendants.
:
___________________________________ :

MEMORANDUM OPINION AND ORDER
KUGLER, United States District Judge:
THIS MATTER is before the Court upon the unopposed motion of Plaintiff Carlos Ortiz
(“Plaintiff”) to appoint pro bono counsel (Doc. No. 36). For the reasons expressed herein, the
motion is DENIED.
Plaintiff initiated this civil action as a prisoner held at the South Woods State Prison,
alleging violations of his constitutional rights. See generally Compl. (Doc. No. 1.) Plaintiff is
currently out of prison on parole, and living in a rehabilitation facility, allegedly as a result of the
injuries he received while in prison that form the basis of this litigation. Pl.’s Br. 1. Plaintiff
submitted the filing and administrative fee of $400 with his Complaint. See Docket Entry. No. 1.
By Order dated October 27, 2014, this Court granted Plaintiff’s attorney’s motion to withdraw as
counsel. (Doc. No. 34.) This Court ordered Plaintiff to obtain new counsel within thirty days, or
Plaintiff would be deemed to be proceeding pro se. On November 6, 2014, Plaintiff filed this

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motion to appoint pro bono counsel. (Doc. No. 36.) Plaintiff has not submitted an application to
proceed IFP. Instead, Plaintiff alleges only that “I don’t have support from nobody,” and
requests a pro bono lawyer. Pl.’s Br. 1.
In appropriate cases and upon application to the Court, a pro se litigant proceeding in
forma pauperis (“IFP”) may have counsel appointed to assist in the litigation. See 28 U.S.C. §
1915. However, indigent persons raising civil rights claims do not have an absolute
constitutional right to counsel. See Parham v. Johnson, 126 F.3d 454, 456–57 (3d Cir.1997). 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. Tabron v. Grace, 6 F.3d 147, 155–56, 157 n. 5 (3d Cir.1993). This
list is not exhaustive, nor is any one factor determinative. Parham, 126 F.3d at 458.
Because Plaintiff has not submitted an application to proceed IFP, this Court will deny
Plaintiff’s motion to appoint pro bono counsel. See Fulton v. United States, 198 Fed. App’x 210,
214 (3d Cir. 2006) (finding that, where plaintiff paid the filing fee instead of completing IFP
forms, “[t]he District Court did not err in failing to deny [Plaintiff’s] request when he had not
received IFP status”). See also Egnotovich v. Greenfield Twp. Sewer Auth., 378 Fed. App’x
121, 123-24 (3d Cir. 2010) (denying motion to appoint counsel on appeal where Plaintiff did not
file application to proceed IFP).1 However, this Order is to be entered without prejudice to

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While the Third Circuit in Parham opined generally that there is no constitutional right to counsel for civil litigants,
suggesting that pro-bono counsel could be appointed to represent a non-indigent litigant, the court qualified this
statement by pointing specifically to 28 U.S.C. 1915(e)(1), which applies only to parties proceeding under IFP
status. Parham, 126 F.3d at 456-57.

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Plaintiff’s right to re-file his request for counsel if warranted. Plaintiff may apply to the Court to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915. If granted such status, then pursuant to
Appendix H of the Local Civil Rules for this District, Plaintiff may re-file his request to appoint
pro bono counsel. Accordingly, for the reasons expressed,
IT IS HEREBY ORDERED that Plaintiff’s motion to appoint pro bono counsel is
DENIED WITHOUT PREJUDICE.

Dated:

12/8/2014

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

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