HARRIS v. HOLMES

Filing 53

OPINION FILED. Signed by Judge Noel L. Hillman on 2/6/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GARY HARRIS,

1:14-cv-00460-NLH-JS
Plaintiff,

OPINION

v.

CHRISTOPHER HOLMES, et al.,
Defendants.

APPEARANCES:
GARY HARRIS
283029
SOUTH WOODS STATE PRISON
215 BURLINGTON ROAD SOUTH
BRIDGETON, NJ 08302
Appearing pro se
GREGORY R. BUENO
NICOLE ELIZABETH ADAMS
SUZANNE MARIE DAVIES
OFFICE OF THE ATTORNEY GENERAL
STATE OF NEW JERSEY
25 MARKET STREET
P.O. BOX 112
TRENTON, NJ 08625
On behalf of Defendants
HILLMAN, District Judge
Plaintiff, Gary Harris, appearing pro se, is in the custody
of the New Jersey Department of Corrections and currently
incarcerated at South Woods State Prison.

Plaintiff claims that

Defendants have violated his rights under the First and

Fourteenth Amendment of the U.S. Constitution by not providing
him with hot meals and adequate food, failing to accommodate
sufficient prayer time and provide prayer oil, preventing him
from wearing religious attire, and harassing and discriminating
against Muslim inmates. 1
Pending before the Court is Plaintiff’s appeal of the
Magistrate Judge’s Order (Docket No. 42) denying Plaintiff’s
motion to “expand class,” expand discovery time, and appoint pro
bono counsel. 2

The Magistrate Judge denied Plaintiff’s request

to expand the class because Plaintiff’s case is not a class
action.

(Docket No. 42 at 1.)

The Magistrate Judge also denied

Plaintiff’s request for pro bono counsel because Plaintiff’s
reason for counsel – that the complexity of legal issues is
beyond the abilities of Plaintiff – did not meet the standard

1

Because Plaintiff has brought claims pursuant to 42 U.S.C. §
1983 for alleged violations of his constitutional rights, this
Court has jurisdiction of this matter pursuant to 28 U.S.C. §§
1331 and 1343.
2

A United States magistrate judge may hear and determine any
non-dispositive pretrial matter pending before the court
pursuant to 28 U.S.C. § 636(b)(1)(A), and a district court judge
will only reverse a magistrate judge’s opinion on pretrial
matters if it is “clearly erroneous or contrary to law,” 28
U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); L. Civ. R.
72.1(c)(1)(A). A ruling is contrary to law if the magistrate
judge has misinterpreted or misapplied applicable law. Gunter
v. Ridgewood Energy Corp., 32 F. Supp. 2d 162, 164 (D.N.J.
1998). The party filing the notice of appeal bears the burden
of demonstrating that the magistrate judge's decision was
clearly erroneous or contrary to law. Exxon Corp. v. Halcon
Shipping Co., Ltd., 156 F.R.D. 589, 591 (D.N.J. 1994).
2

for the appointment of counsel.

(Id. at 2.)

The Magistrate

Judge granted Plaintiff’s request to extend the scheduling
deadlines to complete discovery.

(Id.)

In Plaintiff’s appeal of the Magistrate Judge’s decision,
Plaintiff states the he used the wrong terminology in his
request to “expand the class.”

Instead, what he was seeking was

to add five additional plaintiffs to his case, and Plaintiff
asks this Court to allow him to do so.
The Court cannot grant Plaintiff’s request, which must be
made by way of a motion under the relevant Federal Rules (see,
e.g., Fed. R. Civ. P. 15, 19, 21).

Further, because Plaintiff

has not articulated how the Magistrate Judge’s decision on his
request to “expand the class” as worded in his motion was in
error, Plaintiff’s appeal of the denial of that part of his
motion must be denied.
Plaintiff also appeals the Magistrate Judge’s denial of the
appointment of pro bono counsel.

The Magistrate Judge found,

“Having reviewed plaintiff’s submissions in the case, the Court
finds plaintiff is capable to representing himself.”
2.)

(Id. at

The Magistrate Judge also noted that he was “at a

disadvantage in ruling on plaintiff’s motion because there is no
supporting brief or coherent explanation for why the motion
should be granted.”

(Id. at 1.)

In his appeal, Plaintiff provides several pages of argument
3

as to why he should be appointed counsel.

Because none of this

argument was presented to the Magistrate Judge, however, this
Court cannot find that the Magistrate Judge’s decision was
clearly erroneous.

Plaintiff should present these arguments to

the Magistrate Judge through a properly supported motion for the
appointment of counsel. 3
Accordingly, Plaintiff’s appeal of the Magistrate Judge’s
July 6, 2016 Order must be denied.

An appropriate Order will be

entered.

Date: February 6, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

3

The Court may, pursuant to 28 U.S.C. § 1915, request an
attorney to represent an indigent plaintiff in a civil action.
The statute provides that “the court may request an attorney to
represent any person unable to afford counsel.” 28 U.S.C. §
1915(e)(1). The appointment of counsel is a privilege rather
than the right of a litigant, and it lies within the sole
discretion of the Court. Hennessey v. Atlantic County Dept. of
Public Safety, 2008 WL 4691990, at *2 (D.N.J. 2008) (citations
omitted). In deciding whether to appoint counsel, the court is
first required to determine whether the plaintiff's claim has
“some merit in fact and law.” Parham v. Johnson, 126 F.3d 454,
457 (3d Cir. 1997). The Court may then consider the following
factors to further determine if pro bono counsel should be
requested: (1) the plaintiff's ability to present his own case,
(2) the difficulty of the particular legal issue, (3) the degree
to which factual investigation will be necessary and the ability
of the plaintiff to pursue investigation, (4) the plaintiff's
capacity to retain counsel on his own behalf, (5) the extent to
which a case is likely to turn on credibility determinations,
and (6) whether the case will require testimony from expert
witnesses. Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993).
4