MILLER v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 236

Opinion and Order Granting Pro Bono Application of Pltf.. Signed by Magistrate Judge Joseph A. Dickson on 9/26/13. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICKY MILLER,
Plaintiff,

v.

Civil Action No. 08-3335 (DMC)(JAD)
OPINION AND ORDER

GEORGE HAYMAN, et al.,
Defendants.

JOSEPH A. DICKSON, U.S.M.J.
This matter comes before the Court on the fourth application of plaintiff Ricky Mil r
("Plaintiff') for the appointment of pro bono counsel (ECF No. 235) (the "Fourth Applicatio ).
Pursuant to Federal Rule of Civil Procedure 78, no oral argument was heard. After carefu y
considering the submissions, and based upon the following, Plaintiffs Fourth Application is
granted.
I.

BACKGROUND. 1

This matter involves a pro se litigant's fourth application for appointment of pro bo o
counsel. This Court previously appointed pro bono counsel to Plaintiff in an Opinion da
February 3, 2011. (ECF No. 130). The facts underlying Plaintiffs previous requests for
bono counsel are largely identical to those asserted in this renewed application.
Ricky Miller ("Plaintiff') is in custody of the New Jersey Department of Correcti

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("NJDOC") at Northern State Prison ("NSP") serving a 20-year sentence for robbery and rela
offenses, imposed in Warren County, New Jersey, Superior Court. Plaintiff was initially arres
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For purposes of this motion, the Court adopts the recitation of facts set forth in Ju e
Cavanaugh's November 17, 2010 Opinion denying Plaintiffs motion for preliminary injuncti
(ECF No. 11 0).

on those charges by Warren County authorities on November 24, 2004. Plaintiff was living n
East Stroudsburg, Pennsylvania and working in New Jersey at the time of his arrest. Plain
was incarcerated at the Warren County Correctional Center from the date of his arrest
shortly after his sentencing in April 2006, at which time he entered NJDOC custody.
In June 2005, while Plaintiff was incarcerated at the Warren County Correctional Cen r
awaiting trial, he learned that Monroe County, Pennsylvania had also lodged robbery char s
against him and a detainer, which was sent to the jail.

In February 2006, Pike Coun ,

Pennsylvania also lodged charges and a detainer against Plaintiff, which was sent to the W
County Correctional Center.
Shortly after Plaintiff was transferred to NJDOC custody in April 2006, Plain
informed NJDOC authorities that he wanted the Monroe County, Pennsylvania charges to e
resolved.

On or about May 12, 2006, Defendant Catherine Lewis, a NJDOC employ ,

presented Plaintiff with an Interstate Agreement on Detainers ("lAD") Form I, Request
Disposition. Form I allows an inmate to request final disposition of untried charges pursuant o
Article III of the lAD, and expressly states that such request is deemed a waiver of extraditi
Plaintiff signed Form I requesting final disposition of the untried charges against him
returned it to Defendant Lewis. At the time Plaintiff signed the lAD Form I it was not compl e
and did not identify the jurisdiction of the pending charges. Plaintiff admitted he was aware t
by signing the lAD Form I he was requesting disposition of the open charges and ther
waiving extradition. NSP staff apparently did not immediately send out the forms. On August ,
2006, Defendant Lewis faxed Plaintiff's lAD forms to the Pike County District Attome 's
Office.

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Also in August 2006, Plaintiff first became aware of the Pike County charges when e
was approached by an NJDOC official who asked him to sign lAD forms requesting dispositi n
of the Pike County, Pennsylvania charges, and thereby waiving extradition. Plaintiff belie
that the lAD form he signed in May should also apply to the Pike County, Pennsylvania char s
and he "did not want to start the procedure over again." (Def.'s Mot. Summ. J. Ex.1 at 30Apr. 19, 2010, ECF No. 85). Therefore, Plaintiff indicated that he did not wish to have his P e
County, Pennsylvania charges resolved, and returned Form I to the NJDOC staff member.
August 11, 2006, the Pike County District Attorney's Office sent a completed Form V, whic
a prosecutor's request for temporary custody pursuant to Article IV of the lAD, to NSP
Plaintiff.
In early November 2006, the Pike County District Attorney's Office then sent lAD Fo
VI, which designates the officers who will transport an inmate under the lAD, and a copy of e
Form V, which had been sent to NSP in August, to the lAD Coordinator for the Pennsylv
Department of Corrections. The lAD Form VI designated Pennsylvania State Troopers Orla

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and McCarthy to transport Plaintiff, and they arrived at NSP to transport Plaintiff to Pike Cou
on December 4, 2006. When the Troopers attempted to handcuff Plaintiff to transport him to
vehicle, Plaintiff alleges he lost his balance and fell onto a bench, and further alleges that
Troopers punched him in the face, he lost consciousness, and upon regaining consciousness
taken to the prison infirmary and treated for a cut. The Troopers subsequently transpo
Plaintiff to Pike County. No hearing regarding the transfer took place prior to Plaintiff's trans r
on December 4, 2006. Upon arrival in Pike County, Plaintiff appeared before a Magistrate
was then taken to the Pike County Correctional Facility.

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While in Pike County, Plaintiff filed an application for Writ of Habeas Corpus in the p· e
County Court of Common Pleas, through which he challenged the procedures used to effectu e
his transfer. Specifically, Plaintiff argued that his waiver of extradition was no longer valid
his detention in Pennsylvania was illegal. In denying Plaintiffs Writ of Habeas Corpus,
Pennsylvania Court determined that Plaintiffs transfer from NSP to Pennsylvania was pursu
to Article III of the lAD, and, pursuant to Article III( e) ofiAD, by requesting final disposition
the charges Plaintiffhad waived extradition. (Def.'s Mot. Summ. J. Ex.3 at 4-6, Apr. 19, 20

,

ECF No. 85).
On or about July 3, 2008, Plaintiff filed the underlying civil suit in this case alle
violations of his constitutional rights under 42 U.S.C. §§ 1983, 1985 and claims under N
Jersey state law. On or about February 2, 2009, Plaintiff filed an application for pro b

o

counsel which was denied without prejudice. On or about August 2, 2010, Plaintiff submi
his third application for pro bono counsel. In his third application, Plaintiff cited not only
complexity of the issues but also his indigent and incarcerated status. He further has submit
to the Court multiple letters from attorneys/legal centers that he contacted informing him t
they cannot take on his case. Based on a review of Plaintiffs complaint and applications for
bono counsel, this Court found that the appointment of pro bono counsel was appropriate, ( E
No. 130), and appointed Jennifer Critchley, Esq. ("Attorney Critchley").
By Order dated January 29, 2013, however, this Court granted Attorney Critchley's x
parte application for relief from appointment as pro bono counsel for Plaintiff, finding t at

"Plaintiff has demonstrated a continued effort to pursue this action on his own behalf
without the assistance of the pro bono counsel appointed by this Court." (ECF No. 21
(Plaintiff filed a motion for reconsideration of this Court's November 30, 2012 Opinion

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Order, (ECF No. 194), without authorization from Attorney Critchley. (ECF No. 205, 20 ).
Plaintiff also filed a notice of appeal without authorization from Attorney Crtichley. (ECF
207)). This Court further denied Plaintiffs request to appoint alternate pro bono counsel. (E
No. 215).

At this time, there are currently four defendants in this action and Plainti

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remaining claims include violations ofhis constitutional rights under 42 U.S.C. § 1983.

II.

LEGAL STANDARD.

Civil litigants possess neither a constitutional nor statutory right to appointed coun
Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). However, in some instances then
for representation is great and district courts are granted broad discretion to request
appointment of attorneys to represent indigent civil litigants. 28 U.S.C. § 1915 (d), (e)(l).
Third Circuit has directed that district courts should first determine whether a plaintiffs cl
"has arguable merit in fact and law." Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993),
denied, 510 U.S. 1996 (1994).

Assuming plaintiffs claims have merit, the Third Cir

promulgated a number of factors to be considered by district courts in the exercise of t
discretion under § 1915(e)(l). These factors include: (1) the plaintiffs ability to present
case; (2) the complexity of the legal issues; (3) the extent of factual discovery and the plainti

s

ability to investigate and to comply with complex discovery rules; (4) the extent to which
case may tum on credibility determinations; (5) whether expert testimony will be required;
(6) whether the plaintiff can afford counsel on his own behalf. Id. at 156.
The Third Circuit further emphasized that the "volunteer lawyer[s'] time is extrem ly
valuable" and for that reason, "district courts should not request counsel under § 1915[( )]
indiscriminately." Id. at 157. Finally, the court must take note of "the significant practi al
restraints on the district courts' ability to appoint counsel; the ever-growing number of priso er

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civil rights actions filed each year in the federal court; the lack of funding to pay appoin
counsel; and the limited supply of competent lawyers who are willing to undertake s
representation" without pay. Id.

III.

DISCUSSION.

In analyzing the merits of Plaintiff's Complaint, the Court is cognizant that a pro e
plaintiff's complaint is held to a less stringent standard than pleadings filed by an attorney.
Haines v. Kerner, 404 U.S. 519, 520 (1972). Moreover, the Court recognizes that civil ri
allegations are not meritless unless it appears beyond doubt that the plaintiff can prove no set
facts in support of his or her claim which would entitle him or her to relief. Id.
In the present case, Plaintiff alleges that Defendants unlawfully took him into custody o
extradite him to Pennsylvania and beat him, causing him injuries. Specifically, Plaintiff aile s
that during his transfer from Northern State Prison, Defendants maliciously assaulted
without provocation by twisting his wrist behind his back, causing plaintiff to fall, and
punching him in the face repeatedly to the point Plaintiff lost consciousness. While Plainti

s

claims will require evidentiary support, Plaintiff has established that his claims have suffici
merit to allow the Court to proceed to the second stage of the Tabron analysis. Tabron, 6 F.3
156.
The Court must then look to the ability of Plaintiff to present his case in determin ·
whether to appoint counsel. Tabron, 6 F.3d at 156. Plaintiff claims in his applications for
bono counsel that his limited comprehension of discovery rules, along with his confinement,
impede his ability to pursue his claims. Although Plaintiff has litigated his claims and
demonstrated he has a basic understanding of his claims and the relevant law, Plaintiff clai s
that he has received some assistance in preparing previous submissions, but he no longer

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such help. The Court is convinced that Plaintiff lacks the ability to present his case without n
attorney, especially considering the need for medical expert testimony for Plaintiffs excess· e
force claims.
Next, the Court must consider the complexity of the particular issues involved and
degree to which factual investigation and/or expert testimony is required. See Tabron, 6 F .3d at
156.

Plaintiff alleges he was the victim of excessive use of force in violation of

Constitutional rights. Plaintiff alleges that Troopers Orlando and McCarthy punched him in
face, causing lacerations, bruises, broken teeth and loss of consciousness. Plaintiff has a p
medical report detailing his injuries and has requested dental and psychiatric records. Howe
an incarcerated layperson with no legal education will not be able to fully and adequat ly
analyze the medical records, so an expert will likely be needed to analyze these documents o
assess the extent of Plaintiffs injuries.

Since this medical information is important to

is

excessive force claims, Plaintiff has demonstrated that expert testimony will be required to
address his claims.
Finally, the ability of the plaintiff to obtain and afford counsel on his own behalf i a
factor to be considered by the Court. Plaintiff was granted in forma pauperis status and
submitted a trust account showing he had an outstanding balance on his trust account with
Northern State Prison as of July 16, 2013. (ECF No. 235). Plaintiffs financial limitations
seriously inhibit his ability to adequately pursue his claims. Moreover, Plaintiff asserts that e
recently attempted to obtain legal representation from two law firms; however, his requests
representation were declined.
A factor not specifically listed by Tabron, but certainly important to the analysis here 1s
that Plaintiff already had counsel appointed. During that appointment, Plaintiffs conduct cau d

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great confusion to his own attorneys, the other parties, and this Court and ultimately forced
withdrawal ofhis attorneys. Specifically, Plaintiff filed documents on his own behalf rather th
through his appointed counsel. Once this Court appoints pro bono counsel, Plaintiff is prohibi
from communicating with this Court or opposing counsel expect through his appointed couns 1.
If Plaintiff violates this prohibition and continues to pursue this action on his own behalf, t
Court will relieve pro bono counsel of any representation of Plaintiff.
IV.

CONCLUSION.

For the foregoing reasons, Plaintiffs Fourth Application for the appointment of pro bo o
counsel, (ECF No. 235), is granted.
SO ORDERED

cc:

Hon. Dennis M. Cavanaugh, U.S.D.J.

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