JONES v. UNITED STATES OF AMERICA
Filing
51
OPINION. Signed by Judge Noel L. Hillman on 11/23/2015. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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Plaintiff,
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v.
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UNTIED STATES OF AMERICA,
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Defendant.
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___________________________________:
DONALD JONES,
Civ. No. 14-139 (NLH)
OPINION
APPEARANCES:
Donald Jones, #54517-066
FCI Allenwood
P.O. Box 2000
White Deer, PA 17887
Plaintiff, pro se
HILLMAN, District Judge
This matter is before the Court upon Plaintiff Donald
Jones’ submission of a Second Amended Complaint (ECF No. 44), a
Motion to Appoint Pro Bono Counsel (ECF No. 45), and several
letters and applications (ECF Nos. 42, 43, 46-49).
The Court
will address each of the submissions below and, for the reasons
stated, the Complaint will be filed.
I.
BACKGROUND
The procedural history of this case is set forth in the
Court’s July 28, 2015 Opinion addressing Plaintiff’s application
to reopen (ECF No. 40) and need not be repeated in detail here.
In relevant part, the Court permitted Plaintiff to file a Second
Amended Complaint which would be subject to the Court’s sua
sponte screening.
On August 6, 2015, Plaintiff submitted his
Second Amended Complaint. (ECF No. 44).
He also submitted a
Motion to Appoint Pro Bono Counsel (ECF No. 45), an Application
of Notice for Rule 53.2 Arbitration (ECF No. 46), an Application
requesting a disposition hearing (ECF No. 47), an Application
and Notice of Civil Rule No. 26 (ECF No. 48), and several
Letters (ECF Nos. 42, 43, 49, 50).
The Court will address each
submission in turn.
II.
SECOND AMENDED COMPLAINT
As stated above, Plaintiff submitted his Second Amended
Complaint (“SAC”) on August 6, 2015. (ECF No. 44).
At this
time, the Court must review the Second Amended Complaint to
determine whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be
granted, or because it seeks monetary relief from a defendant
who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (in
forma pauperis actions); 28 U.S.C. § 1915A (actions in which
prisoner seeks redress from a governmental defendant); 42 U.S.C.
§ 1997e (prisoner actions brought with respect to prison
conditions).
A. Standards for sua sponte dismissal
Every complaint must comply with the pleading requirements
of the Federal Rules of Civil Procedure.
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Rule 8(a)(2) requires
that a complaint contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
“Specific facts are not necessary; the statement need only ‘give
the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (citations omitted).
While a complaint ... does not need detailed factual
allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will
not do ... . Factual allegations must be enough to
raise a right to relief above the speculative level
... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
That is, a complaint must assert “enough facts to state a
claim to relief that is plausible on its face.” Id. at 570.
“A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556).
The determination of whether the factual
allegations plausibly give rise to an entitlement to relief is
“‘a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.’” Bistrian v.
Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citations omitted).
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Thus, a court is “not bound to accept as true a legal conclusion
couched as a factual allegation,” and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678
(citations omitted).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to accept its factual allegations as true,
see James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir.
2012), and to construe it liberally in favor of the plaintiff,
see Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States
v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
In general, where a complaint subject to statutory
screening can be remedied by amendment, a district court should
not dismiss the complaint with prejudice, but should permit the
amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson
v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002)
(noting that leave to amend should be granted “in the absence of
undue delay, bad faith, dilatory motive, unfair prejudice, or
futility of amendment”), cited in Thomaston v. Meyer, 519 F.
App’x 118, 120 n.2 (3d Cir. 2013); Urrutia v. Harrisburg County
Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
B. Analysis
After an initial review of the SAC, the Court determines
that dismissal of the SAC is not warranted at this time.
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III. Motion for Pro Bono Counsel
Plaintiff has filed a motion seeking the appointment of pro
bono counsel. (ECF No. 45).
In this motion, Plaintiff states
that he is unable to afford an attorney and that his “knowledge
of civil law has greatly limited his ability to litigate.” (Mot.
1, ECF No. 45).
Plaintiff further states that “[t]he issues
involved in this case are complex and will require significant
research and investigation.” (Id.).
Finally, Plaintiff implies
that discovery will be needed to expose Defendants’ alleged
cover-up of the deficient medical treatment Plaintiff received
on April 9, 2012.
A. Standard
A court may, pursuant to § 1915(e), request an attorney to
represent an indigent plaintiff in a civil action. See 28 U.S.C.
§ 1915(e)(1) (“The court may request an attorney to represent
any person unable to afford counsel.”).
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, No. 13-1258, 2013 WL 1121377, at *1 (D.N.J. Mar. 12,
2013).
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The decision to appoint pro bono counsel involves a twostep 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 the action arguably has merit, it should then
consider the 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 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 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.
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. Tabron, 6 F.3d at
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156.
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 F.
App’x 153, 157 (3d Cir. 2007).
B. Analysis
In the present motion, Plaintiff states that pro bono
counsel is warranted because he has a “limited [] ability to
litigate.” (Mot. 1, ECF No. 45).
However, it is evident that
Plaintiff is sufficiently able to represent himself at this
point.
The contours of Plaintiff’s underlying argument are
clear and, as the record in this case reflects, Plaintiff is
capable of filing motions and other documents.
In light of
Plaintiff’s abilities, the first Tabron/Parham factor weighs
against the appointment of counsel. See Gordon, 232 F. App’x at
157.
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)).
At this time, the issues presented in this case appear
relatively straightforward and concern the quality of treatment
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received on April 9, 2012.
Therefore, at this time, the second
Tabron/Parham factor weighs against the appointment of counsel.
The third factor is the degree to which factual
investigation will be necessary and the ability of the plaintiff
to pursue such investigation.
Where claims are likely to
require extensive discovery and compliance with complex
discovery rules, appointment of counsel may be warranted.
Tabron, 6 F.3d at 156.
In his SAC, Plaintiff indicates that he
has not been able to obtain information regarding this medical
treatment on April 9, 2012 and he alleges that this is the
result of a cover-up.
issue in the future.
Thus, discovery may be needed on this
However, because the SAC is just now
proceeding past the sua sponte screening stage, no formal
discovery has been exchanged between the parties.
Therefore, at
this point, the third Tabron/Parham factor is neutral.
The
Court notes that Plaintiff may renew his application for the
appointment of pro bono counsel should discovery issues arise in
the future.
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.
Thus, a court should be aware of
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“the degree to which credibility is at issue.” Wassell v.
Younkin, No. 07-326, 2008 WL 73658, at *4 (W.D. Pa. Jan. 7,
2008).
In this case, the success or failure of Plaintiff’s
medical negligence or medical malpractice claims will likely
turn on documentation — i.e., the information contained in
Plaintiff’s medical records.
The Court notes, however, that
Plaintiff claims that prison officials have denied the existence
of, or hidden, documentation regarding his April 9, 2012
treatment.
Thus, it is unclear at this time how much of the
case will turn on credibility determinations.
Accordingly, the
Court finds that the fourth Tabron/Parham factor is neutral.
The fifth factor for consideration is the extent to which
expert testimony may be required.
Appointed counsel may be
warranted where the case will require testimony from expert
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 F. App’x 196, 202 (3d Cir. 2010).
In the case
presently before the Court, it is unclear at this time whether
Plaintiff will require expert testimony.
Thus, the fifth
Tabron/Parham factor weighs against the appointment of counsel
at this time.
The final factor addressed by the Third Circuit in Tabron
and Parham is plaintiff’s financial ability to attain and afford
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counsel on his own behalf. Parham, 126 F.3d at 461.
In this
case, Plaintiff has been granted leave to proceed in forma
pauperis (ECF No. 10); accordingly, the Court finds that the
sixth Tabron/Parham factor weighs in favor of granting
Plaintiff’s motion.
As discussed above, the majority of the Tabron/Parham
factors do not support the appointment of pro bono counsel.
Therefore, the Court will DENY Plaintiff’s motion at this time.
This denial is without prejudice to Plaintiff renewing his
request in the event that future proceedings demonstrate the
need for counsel.
IV.
OTHER SUBMISSIONS BY PLAINTIFF
The Court notes that Plaintiff has filed numerous other
letter requests and submissions on the docket.
Specifically, he
has submitted:
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a Letter regarding the Second Amended Complaint (ECF No.
42);
a Letter requesting medical treatment (ECF No. 43);
an Application of Notice for Rule 53.2 Arbitration the
Speedy Civil Trial (ECF No. 46);
an Application requesting a disposition hearing (ECF No.
47);
an Application and Notice of Civil Rule No. 26 (ECF No.
48); and
a Letter to the Court (ECF No. 49)
a Letter to the Court (ECF No. 50)
The Court has carefully reviewed each of these documents
and determines that no action from the Court is warranted at
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this time.
To the extent Plaintiff intended these submissions
to be considered as motions or informal requests, they are
denied. 1
However, for purposes of clarification — and to assist
Plaintiff in better understanding the legal process — the Court
will comment on two of Plaintiff’s submissions.
First, the Court responds to Plaintiff’s letter requesting
immediate medical treatment. (ECF No. 43).
As an initial
matter, to the extent Plaintiff requests that the Court compel
treatment for Plaintiff’s vision, his request is denied.
Plaintiff mentions that he is due for his regular two-year
vision check-up; however, his complaints regarding his vision
are neither related to the allegations of the SAC, nor are they
emergent.
No further discussion on this matter is warranted.
Additionally, although Plaintiff seeks “immediate medical
treatment for the stroke symptoms” he is experiencing, the Court
does not construe these allegations as setting forth an emergent
situation.
Plaintiff contends that he needs to be seen by a
Heart and Nerve Specialist and he alleges that he has never been
seen by any kind of specialist for these symptoms. (Letter 3,
ECF No. 43).
However, Plaintiff concedes in his SAC that he was
treated at the Deborah Heart and Lung Center. (SAC 10, ECF No.
1
In the event Plaintiff wishes to raise an issue not addressed
in this Opinion, he is advised that he must file a formal motion
which comports with the Federal Rules of Civil Procedure. See
FED. R. CIV. P. 7(b).
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44).
Further, Plaintiff attaches documentation to his SAC,
which includes medical records from Deborah Heart and Lung
Center as well as from the Susquehanna Health - Heart & Vascular
Institute. (SAC 20-41, 49-52, ECF No. 44).
Finally, a prison
medical record attached to Plaintiff’s SAC indicates that
Plaintiff was recently seen by prison medical officials in
response to his complaints of pain on his left side. (SAC 56-57,
ECF No. 44).
After an examination, the medical staff performed
an x-ray and determined that the pain Plaintiff was experiencing
was attributable to “moderate degenerative disc disease” as
opposed to any ongoing heart failure. (Id.).
Thus, there is
nothing before the Court to suggest that Plaintiff is in
imminent danger.
In response to Plaintiff’s Application for arbitration (ECF
No. 46), the Court declines to designate this case for
arbitration.
Specifically, the Court notes that, pursuant to
Local Civil Rule 201.1, this case is not eligible for compulsory
arbitration because the amount in controversy exceeds $150,000.
See L.CIV.R. 201.1(d)(1) (“[T]he Clerk shall designate and
process for compulsory arbitration any civil action pending
before the Court where the relief sought consists only of money
damages not in excess of $150,000 exclusive of interest and
costs and any claim for punitive damages.”) (emphasis added).
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Finally, the Court addresses Plaintiff’s applications
regarding discovery. (ECF Nos. 47, 48).
Given that Defendant
will be required to provide an Answer to the allegations of the
SAC, an order for discovery is premature at this time and
Plaintiff’s requests are denied without prejudice.
V.
CONCLUSION
For the foregoing reasons, the Court determines that
dismissal of the SAC is not warranted at this time.
Additionally, Plaintiff’s Motion for Pro Bono Counsel (ECF No.
45) and any requests made in his other letters and applications
(ECF Nos. 42, 43, 46-50) are denied without prejudice for the
reasons discussed above.
An appropriate Order follows.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: November 23, 2015
At Camden, New Jersey
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