EDWARDS v. GAHM et al

Filing 12

MEMORANDUM OPINION & Order denying without prejudice application for Pro Bono Counsel 2 . Signed by Judge Noel L. Hillman on 12/21/2017. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MR. RENE’ D. EDWARDS,

Civil No. 16-5702 (NLH/AMD)

Plaintiff,
MEMORANDUM OPINION
AND ORDER

v.
JAMES R. GAHM, et al.,
Defendants.

APPEARANCES:
Mr. Rene’ D. Edwards
703 Whitehorse Pike
Atco, New Jersey 08004
Pro Se Plaintiff
HILLMAN, District Judge
This matter having come before the Court by way of
Plaintiff’s application [Doc. No. 1-2] to proceed in forma
pauperis (“IFP application”); and
The Court having granted Plaintiff’s IFP application by
Order [Doc. No. 3] dated September 21, 2016 and having found
that Plaintiff’s Complaint was subject to sua sponte screening
by the Court 28 U.S.C. § 1915(e)(2)(B);

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1

and

Although Section 1915 refers to “prisoners,” federal courts
apply Section 1915 to non-prisoner IFP applications as well.
See, e.g., Hickson v. Mauro, 2011 WL 6001088, *1 (D.N.J. 2011)
(citing Lister v. Dept. of Treasury, 408 F.3d 1309, 1312 (10th
Cir. 2005) (“Section 1915(a) applies to all persons applying for
IFP status, and not just to prisoners.”) (citing Martinez v.
Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n. 1 (11th Cir.

The Court recognizing that under the Prison Litigation
Reform Act (“PLRA”), the Court must review the complaint in a
civil action in which a plaintiff is proceeding in forma
pauperis.

See 28 U.S.C. § 1915(e)(2)(B).

The PLRA requires the

Court to sua sponte dismiss any claim if the Court determines
that it is frivolous, malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief.

Id.; and

The Court further noting that a “document filed pro se is
to be liberally construed, ... and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers[.]”

Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation
marks omitted); see also Haines v. Kerner, 404 U.S. 519, 520
(1972); and

2004); Haynes v. Scott, 116 F.3d 137, 140 (5th Cir. 1997); Floyd
v. United States Postal Serv., 105 F.3d 274, 275 (6th Cir.
1997)); El Ameen Bey v. Stumpf, No. 11-5684, 2011 WL 4962326, at
* 11 n.7 (D.N.J. Oct. 17, 2011) (Kugler, J.) (“Although Section
1915(a) refers to a ‘statement of all assets such prisoner
possesses,’ this section has been applied by courts in their
review of applications of non-prisoners as well.”) (citing
Douris v. Middletown Twp., 293 F. App’x 130 (3d Cir. 2008) (“The
reference to prisoners in § 1915(a)(1) appears to be a mistake.
In forma pauperis status is afforded to all indigent persons,
not just prisoners.”)).
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It appearing from the Complaint that Plaintiff is asserting
claims pursuant to 42 U.S.C. § 1983 alleging violations of his
Fourth and Fourteenth Amendment rights under the Constitution
including counts for false arrest, false imprisonment, and
malicious prosecution, (See Compl. [Doc. No. 1] 2-5); and
It further appearing from the Complaint and the attachments
thereto, that the following facts are relevant to Plaintiff’s
claims in this matter: In 1986 Plaintiff was convicted in state
court in New Jersey of an offense that subjected him to Megan’s
Law. 2

(Compl. [Doc. No. 1] “Decision”, 9.)

Based on that

conviction, Plaintiff was later subjected to the GPS monitoring
requirements set forth under the Sex Offender Monitoring Act
(“SOMA”), see N.J.S.A. § 30:4-123.89 et seq.

On March 5, 2008,

Plaintiff was arrested and charged for his failure to comply

2

By way of background, “[i]n 1994, seven year old Megan
Kanka was abducted, raped, and murdered near her New Jersey home
by a neighbor who had previously been convicted of sex offenses
against young girls. Thereafter, Congress passed the Jacob
Wetterling Crimes Against Children and Sexually Violent Offender
Registration Act, title 17, § 170101, 108 Stat.2038, as amended,
42 U.S.C. § 14071, which condition[ed] certain federal funds for
law enforcement on the States' adoption of a Megan's Law, so
named after Megan Kanka. By 1996, every State, the District of
Columbia, and the Federal Government had passed a Megan's Law.
While these laws vary from State to State, they generally
require convicted sex offenders to register with law enforcement
officials, who then notify community members of the registrants'
whereabouts.” A.A. ex rel. M.M. v. New Jersey, 341 F.3d 206,
208 (3d Cir. 2003).
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with the GPS monitoring requirements under SOMA.

(Id.)

Plaintiff entered a plea of guilty to that charge in May of 2010
and was sentenced on July 9, 2010.

(Id.)

In 2014,

approximately four years after he was sentenced (and six years
after he was initially arrested for the SOMA charge), the New
Jersey Supreme Court ruled in Riley v. New Jersey State Parole
Board, 219 N.J. 270, 291-298 (2014), the GPS monitoring
requirements under SOMA were not applicable to defendants who
committed offense prior to the effective date of the Act.
at 10.)

(Id.

Based on the holding in Riley, Plaintiff filed a

petition for Post-Conviction Relief in New Jersey in 2015
essentially arguing that he fell within the category of
individuals described in Riley to whom SOMA’s GPS monitoring
requirements should not have applied.

(Id.)

By Decision and

Order dated July 13, 2016, the New Jersey Superior Court granted
Plaintiff’s PCR petition, concluded that Plaintiff “should have
never been subjected to the GPS monitoring requirements” of
SOMA, and vacated Plaintiff’s convictions under the Act.

(Id.

at 8, 10-11.); and
Plaintiff now essentially alleging that the individuals
named as Defendants in this action -- various parole officers,
police officers, and prosecutors involved in his 2008 arrest and

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2010 plea agreement –- violated Plaintiff’s Constitutional
rights at the time they arrested and prosecuted him in 2008 for
failing to comply with the GPS monitoring requirements of SOMA
because he never should have been subjected to those
requirements in the first place, (Id. at 2-5); and
Plaintiff attempting to bring claims pursuant to 42 U.S.C.
§ 1983 for false arrest, false imprisonment, and malicious
prosecution in violation of his Fourth and Fourteenth Amendment
rights arising out of his 2008 arrest regarding his failure to
comply the GPS monitoring requirements under SOMA; and
The Court noting that “[t]o state a claim under 42 U.S.C. §
1983, a plaintiff must allege a person acting under color of
state law engaged in conduct that violated a right protected by
the Constitution or laws of the United States.”

Morrow v.

Balaski, 719 F.3d 160, 165-66 (3d Cir. 2013) (citing Nicini v.
Morra, 212 F.3d 798, 806 (3d Cir. 2000)).

The Court’s “‘first

step in evaluating a section 1983 claim is to ‘identify the
exact contours of the underlying right said to have been
violated’ and to [then] determine ‘whether the plaintiff has
alleged a deprivation of a constitutional right at all.’”
Morrow, 719 F.3d at 166 (quoting Nicini, 212 F.3d at 806); and
The Court finding that, at this time, the facts of the

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Complaint and the attachments attached thereto, construed
liberally, do not warrant dismissal at the screening phase; and
The Court further finding that Plaintiff’s motion for
appointment of counsel, however, is premature.

While there is

no right to counsel in a civil case, see Tabron v. Grace, 6 F.3d
147, 153-54 (3d Cir. 1993); Parham v. Johnson, 126 F.3d 454,
456-57 (3d Cir. 1997)), pursuant to 28 U.S.C. § 1915(e)(1),
“[t]he court may request an attorney to represent any person
unable to afford counsel.”

In deciding whether counsel should

be appointed, the Court first considers whether a claim or
defense has “arguable merit in fact and law,” and, if it does,
the Court then considers additional factors, which include: (1)
the applicant’s ability to present his or her case; (2) the
complexity of the legal issues presented; (3) the degree to
which factual investigation is required and the ability of the
applicant to pursue such investigation; (4) whether credibility
determinations will play a significant role in the resolution of
the applicant’s claims; (5) whether the case will require
testimony from expert witnesses; and (6) whether the applicant
can afford counsel on his or her own behalf.
155-157.

Tabron, 6 F.3d at

Plaintiff’s motion, however, does not sufficiently

address any of these factors.

Plaintiff is granted leave to

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file a renewed motion for appointment of pro bono counsel, fully
addressing each of these factors, once the case progresses
further.
Accordingly,
IT IS on this

21st

day of

December

, 2017, hereby

ORDERED that the Clerk is directed to file Plaintiff’s
Complaint; and it is further
ORDERED that Plaintiff’s motion [Doc. No. 2] seeking
appointment of pro bono counsel shall be, and hereby is, DENIED
WITHOUT PREJUDICE; and it is further
ORDERED that, the Clerk shall mail to Plaintiff a
transmittal letter explaining the procedure for completing
United States Marshal (“Marshal”) 285 Forms (“USM-285 Forms”);
and it is further
ORDERED that, once the Marshal receives the USM-285 Forms
from Plaintiff and the Marshal so alerts the Clerk, the Clerk
shall issue summons in connection with each USM-285 Form that
has been submitted by Plaintiff, and the Marshal shall serve
summons, the Complaint and this Order to the address specified
on each USM-285 Form, with all costs of service advanced by the
United States; 3 and it is further

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Alternatively, the U.S. Marshal may notify Defendants that an
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ORDERED that Defendants shall file and serve a responsive
pleading within the time specified by Federal Rule of Civil
Procedure 12.

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

At Camden, New Jersey

action has been commenced and request that Defendants waive
personal service of a summons in accordance with FED. R. CIV. P.
4(d).
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