SOSA v. COUNTY OF CAMDEN et al

Filing 26

Memorandum Order Granting Pro Bono Application. The Court shall TEMPORARILY STAY this case until pro bono counsel for Plaintiff has entered an appearance. Signed by Judge Jerome B. Simandle on 3/18/2019. (tf, n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ADAM SOSA,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
v.

Civil Action
No. 16-cv-8662(JBS-AMD)

COUNTY OF CAMDEN, CAMDEN
COUNTY BOARD OF CHOSEN
FREEHOLDERS, WARDEN OF CAMDEN
COUNTY CORRECTIONAL FACILITY,
and CORRECTIONAL OFFICERS JANE
& JOHN DOES 1 THROUGH 100 IN
OFFICIAL & INDIVIDUAL
CAPACITIES,

MEMORANDUM ORDER

Defendants.

APPEARANCES:
Adam Sosa, #525099-C,
East Jersey State Prison
Lock Bag R
Rahway, NJ 07065
Plaintiff Pro Se
CHRISTOPHER A. ORLANDO, COUNTY COUNSEL
By: Anne E. Walters,
Assistant County Counsel
Office of County Counsel
520 Market Street, 14th Floor Courthouse
Camden, NJ 08102
Attorney for Defendants
JEROME B. SIMANDLE, U.S. District Judge:
This matter is before the Court upon a motion by plaintiff
pro se, Adam Sosa, seeking appointment of pro bono counsel.
(D.E. 23.) The Court, after reviewing the record, finds as
follows:

1.

On June 4, 2018, the Court entered an opinion (D.E. 21)

(“June 4 Opinion”) and order (D.E. 22) (“June 4 Order”) granting
the motion for summary judgment (“the SJ Motion”) (D.E. 18) of
defendants County of Camden (“County”), Camden County Freeholders
(“Freeholders”), and Warden of the Camden County Correctional
Facility

(“Warden”)

(County,

Freeholders,

and

Warden

are

collectively referred to as “Defendants”). The Court considered
the SJ Motion. which was then unopposed, on the papers pursuant to
Fed. R. Civ. P. 78(b).
2.

On June 12, 2018, the Clerk’s Office of this Court

received from Plaintiff a Letter Motion to Appoint Pro Bono
Counsel. (D.E. 23 (“Plaintiff’s Motion”).)
3.
this

Allowing for regular U.S. mail delivery time between

Court

and

East

Jersey

State

Prison,

it

appears

that

Plaintiff’s Motion crossed in the mail with this Court’s June 4
Opinion and Order.
4.

Under

Local

Civ.

R.

7.1(d)(2),

Plaintiff’s

timely

opposition to the SJ Motion would have been due on or before May
21,

2018.

Plaintiff

did

not

timely

file

such

opposition.

Nevertheless, Plaintiff’s Motion, to the extent it opposes the SJ
Motion, arguably was not unreasonably late either, as he could
have requested an automatic fourteen-day extension under Local
Civ. R. 7.1(d)(5). Under that provision, Plaintiff could have had
2

until June 4, 2018 to file his opposition for a June 18, 2018
motion day.
5.

The Court Will Re-Open This Case: In light of the above-

described mail-crossing, in the interests of fairness to all
parties to this proceeding, and given Plaintiff’s pro se status,
the Court will consider Plaintiff’s Motion as a request to: (a)
re-open the docket of Civil Action No. 16-cv-8662 and; (b) set
aside the June 4 Opinion and June 4 Order. The Court will grant
that request and instruct the Clerk of Court accordingly, as set
forth at the conclusion of this Order.
6.

The Parties Shall Complete Limited Discovery By July 1,

2019: The only discovery requests or responses of any party
attached to any filings in this case are Defendants’ Fed. R. Civ.
P.

26

Disclosures

(D.E.

18-4

at

2-4)

and

Defendants’

interrogatories and document requests to Plaintiff. (D.E. 18-5 at
2-14.) The Defendants’ Brief in Support of Summary Judgment (D.E.
18-2 at 6) and their Statement of Material Facts (D.E. 18-8 at 2)
argue that Plaintiff did not serve discovery responses or Fed. R.
Civ. P. 26 disclosures. Perhaps related to this point, Plaintiff
contends that he “understand[s] it [is] [his] responsibility to
respond on a timely basis,” but he is “in dire strai[]ts” as he is
in need of counsel to help him with his case. (D.E. 23 at 1.) On
the issue of discovery, the Court notes also that there is no
3

indication in the record that Defendants attempted to resolve
Plaintiff’s discovery failures with him, or to otherwise bring it
to Magistrate Judge Ann Marie Donio’s attention, prior to the close
of pre-trial fact discovery on March 30, 2018 (see D.E. 17 at 1)
or prior to the filing of Defendants’ May 11, 2018 SJ Motion. The
interests of justice here -- including the unique timing of the
above-referenced
unfamiliarity

with

mail-crossing,
litigation,

Plaintiff’s

Plaintiff’s

demonstrated

attempt

to

oppose

summary judgment, and the case’s discovery posture as of the June
4 Opinion and Order -- warrant that the parties be directed to
conduct limited discovery with the aid of Plaintiff’s pro bono
counsel, as discussed below.
7.

The Court Will Grant Plaintiff’s Request For Appointment

of Pro Bono Counsel: Plaintiff asks this Court to assign him pro
bono counsel. He states that he understands his responsibilities
as a litigant, but he is in “desperate need of an attorney[’]s
assistance” because “[t]he inmate that was assisting me has been
transferred to another prison.” (D.E. 23 at 1.) Appointment of
counsel is a privilege, not a statutory or constitutional right.
Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011). Section
1915 permits a court to request that an attorney represent any
person who is unable to afford counsel on his own. 28 U.S.C. §
1915(e)(1).

Courts,

in

deciding
4

whether

to

appoint

pro

bono

counsel, first must consider whether plaintiff's claim “has some
merit in fact and law.” Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.
1993) (quotation omitted). If the court finds that it does, the
court should consider the following factors: (a) the plaintiff's
ability to present his or her own case; (b) the complexity of the
legal issues; (c) the degree to which factual investigation will
be necessary and the ability of the plaintiff to pursue such
investigation;

(d)

the

amount

a

case

is

likely

to

turn

on

credibility determinations; (e) whether the case will require the
testimony of expert witnesses; and (f) whether the plaintiff can
attain and afford counsel on his own behalf.1 Parham v. Johnson,
126 F.3d 454, 457 (3d Cir. 1997) (citing Tabron, 6 F.3d at 155–
56, 157 n. 5). This list of factors is not exhaustive, nor is a
single factor determinative. Id. at 458. Instead, the factors serve
as guideposts for district courts to ensure valuable attorney time
is not “wasted on frivolous cases.” Id.
8.

Based on this Court’s August 30, 2017 Opinion and Order

that permitted Plaintiff’s conditions of confinement claims and
his

New

Jersey

Constitution

claim

to

proceed

beyond

initial

screening (D.E. 5; D.E. 6), Plaintiff’s claims appeared to have
some merit in fact and law, thus meeting Tabron’s initial hurdle.

1

The Court in this case granted Plaintiff’s application to
proceed in forma pauperis on December 20, 2016. (D.E. 3.)
5

9.

However, as of June 2018, Plaintiff had failed to come

forward with any evidence supporting either his conditions of
confinement claims (see D.E. 21 at 10-16) or his First Amendment
claims.

(Id.

illustrate

at

16-19.)

Plaintiff's

The

Court

inability

finds
to

that

these

manage,

points

investigate,

understand, substantiate, and present his own case. These points
also suggest his lack of education or experience to sufficiently
appreciate the legal issues that will impact the ultimate success
or failure or his claims. Although the Court makes no finding at
this time as to the truth of Plaintiff’s factual representations
in his Motion (D.E. 23), the Court notes that he claims someone
who was helping him with the litigation was transferred to another
facility. (Id. at 1.) If true, and assuming such person in fact
possessed some degree of legal experience or education, this point
would

further

underscore

the

need

for

pro

bono

counsel

in

Plaintiff’s circumstances.
10.

While it may be presently unclear whether this case will

in fact proceed to trial or whether the case will require expert
witness testimony, Plaintiff’s Motion shows that he is undoubtedly
unfamiliar

with

the

litigation

process

and

motion

practices.

Successive mis-steps, omissions, and untimely filings such as
those thus far will only further tax both sides to this litigation.
Appointment of pro bono counsel, who can enter an appearance,
6

participate in resolving discovery disputes, and suggest a new
dispositive motion schedule, is a sensible resolution in this
situation. However, nothing in this Memorandum Order should be
construed as questioning the sound and well-reasoned analysis of
Judge Donio in her November 27, 2017 Order denying appointment of
counsel for Plaintiff. (D.E. 16.) At that time, consideration of
the Tabron factors on balance did not weigh in favor of pro bono
counsel appointment. (Id.) Since then, circumstances have changed,
as outlined in this Memorandum Opinion.
Accordingly, IT IS this

18th

day of March, 2019 hereby

ORDERED that the Clerk of this Court shall RE-OPEN this case
and VACATE the June 4, 2018 Opinion (D.E. 21) and June 4, 2018
Order (D.E. 22); and it is further
ORDERED that Plaintiff’s motion to appoint pro bono counsel
[D.E

23]

is

GRANTED,

and

the

Clerk

shall

select

counsel

in

accordance with Appendix H of the Local Civil Rules for appointment
by the undersigned; and it is further
ORDERED that the Court shall TEMPORARILY STAY this case until
pro bono counsel for Plaintiff has entered an appearance; and it
is further
ORDERED
discovery,

that

the

including

parties

shall

interrogatories,

conduct
document

pretrial
requests,

fact
and

depositions. Such discovery shall commence upon appointment of
7

Plaintiff’s pro bono counsel under the provisions of this Order
and conclude by July 1, 2019. The parties shall meet and confer
and promptly bring any discovery disputes to the attention of Judge
Donio by way of the informal procedure of L. Civ. R. 37.1(a); and
it is further
ORDERED that, within fourteen (14) days following appointment
of pro bono counsel for Plaintiff, counsel for the parties shall
confer and submit to Judge Donio a proposed joint scheduling order,
including a discovery schedule with a July 1, 2019 fact discovery
deadline and a proposed dispositive motion schedule; and it is
finally
ORDERED
discovery,
enforce

that

Judge

supervise

deadlines,

Donio

other
and

has

case

convene

full

discretion

management
a

items,

settlement

manage

enlarge

or

conference,

if

appropriate.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

8

to