SZEMPLE v. UNIVERSITY OF MEDICINE & DENTISTRY OF NEW JERSEY et al

Filing 16

OPINION. Signed by Judge Dennis M. Cavanaugh on 5/19/2012. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CRAIG FRANCIS SZEMPLE,
Plaintiff,
v.
UNIVERSITY OF MEDICINE &
DENTISTRY OF NEW JERSEY, et al.,
Defendants.

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Hon. Dennis M. Cavanaugh
OPINION
Civil Action No. 2:10-cv-258 (DMC)(JAD)

DENNIS M. CAVANAUGH, U.S.D.J.
This matter comes before the Court on the Application of Plaintiff Craig Francis Szemple
(“Plaintiff”) for the Appointment of Pro Bono Counsel. ECF No. 15. Pursuant to FED. R. CIV. P.
78, no oral argument was heard. After carefully considering the submissions, and based upon the
following, it is the finding of this Court that Plaintiff’s Application is denied.
I.

BACKGROUND
This matter involves a pro se litigant’s application for appointment of pro bono counsel. The

underlying facts of this case are thoroughly discussed in the Third Circuit’s 2011 Opinion remanding
the matter to this Court, 2011 WL 5562668 (3d Cir. Nov. 14, 2011), and will not be addressed except
as necessary to set forth the background for this Application.
Plaintiff filed a Complaint on January 14, 2010, alleging various causes of action for
violations of state and federal law. ECF No. 1. This Court issued an order administratively
terminating Plaintiff’s Complaint on July 21, 2010. ECF No. 3. Plaintiff re-filed his Complaint on

August 6, 2010, and this Court issued an Opinion and Order on October 15, 2010 dismissing the
case, without prejudice, for failure to state a claim upon which relief may be granted. ECF Nos. 5,
9, 10. This Court then denied Plaintiff’s Motion to Reopen the Case on January 19, 2011. ECF Nos.
11, 12. On appeal, the Third Circuit found that Plaintiff had presented “factual allegations in the
amended complaint that support a plausible claim of deliberate indifference” so as to state a claim
under the Eight Amendment. Szemple, 2011 WL 5562668 at *3. The Third Circuit went on to note
that “[a]lthough it is unclear at this stage whether [Plaintiff] will be able to prove his allegations, his
amended complaint goes beyond a claim of mere negligence and is sufficient to survive screening
under 28 U.S.C. § 1915A.” Id. at *4. Accordingly, the Third Circuit remanded the case to this Court
for further proceedings. Id. Following remand, Plaintiff filed the present Application. The matter
is now before this Court.
II.

LEGAL STANDARDS
District courts have authority to request the appointment of counsel to represent indigent

litigants in civil cases. 28 U.S.C. § 1915(e)(1). Because civil litigants do not have a constitutional
right to appointed counsel, the Third Circuit has stated that district courts should first determine
whether a plaintiff's claim “has arguable merit in fact and law.” Tabron v. Grace, 6 F.3d 147, 153,
155 (3d Cir. 1993), cert denied, 510 U.S. 1196 (1994). Assuming there is merit, the Third Circuit
has set forth a number of factors to be considered by district courts in the exercise of their discretion
under § 1915(e)(1). These factors are: (1) the plaintiff’s ability to present his case; (2) the
complexity of the legal issues; (3) the extent of factual discovery, and the plaintiff’s ability to
investigate and to comply with complex discovery rules; (4) the extent the case may turn on
credibility determinations; (5) whether expert testimony will be required; and (6) whether the
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plaintiff can afford counsel on his own behalf. Id. at 155-56. This Circuit has also emphasized “that
volunteer lawyer time is extremely valuable” and for that reason, “district courts should not request
counsel under § 1915(d) indiscriminately.” Simpson v. Federal Bureau of Prisons, No. 02-2313,
2005 WL 2387631 at *3 (M.D. Pa. Sept. 28, 2005) (citing Tabron, 6 F.3d at 157).
III.

DISCUSSION
As a threshold matter, the Court notes that based on the Third Circuit’s decision in this

matter, there is no question that Plaintiff’s case has arguable merit in fact and law. The Court
therefore turns to a consideration of the six Tabron factors. In support of his Application, Plaintiff
argues that he is confined to a prison cell and has very limited access to the prison library, a situation
exacerbated by the New Jersey Department of Corrections’ alleged pre-disposition to do everything
in its power to “effectively stop this complaint in [its] tracks.” Pl.’s Application 3. Plaintiff also
complains that his confinement results in limited access to outside materials such as medical or
dental publications, that any incoming mail is first examined outside of Plaintiff’s presence, and that
his phone calls are monitored. Pl.’s Application 4-5. Plaintiff further avers that he does not have
the requisite skills to prosecute this litigation, which he argues is “far more complex in nature than
other eight amendment claims,” as it involves difficult medical questions and will likely require
expert testimony. Pl.’s Application 3-4. Plaintiff notes that conflicting expert and eyewitness
testimony will make credibility determinations “crucial,” which militates in favor of appointing
counsel. Pl.’s Application 4. Finally, Plaintiff asks this Court to consider the importance of his case,
and the potential impact it might have on the level of medical and dental care provided to all inmates.
Pl.’s Application 5-6.
The Court accepts Plaintiff’s sworn assertion that he does not possess sufficient income to
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retain his own counsel. Pl.’s Affidavit in Support of Motion 7. Additionally, the Court notes that
Plaintiff’s case is medical in nature, and thus may present complex issues and require expert
testimony, as well as potential credibility determination issues at trial. Accordingly, these factors
weigh in Plaintiff’s favor.
The Court is not especially persuaded, however, by Plaintiff’s arguments concerning his
limited access to legal materials. It is true that the materials available in prisons do not compare
favorably with those available to members of the bar, and the Court acknowledges that Plaintiff is
limited in the amount of time he may spend reviewing those materials. Plaintiff has not shown,
however, how his access to these materials is uniquely limited in comparison to other pro se prison
litigants. Courts routinely deny motions to appoint counsel, despite a plaintiff’s limited access to
a prison law library and limited ability to investigate the law of his case. See, e.g., Neeld v. New
Jersey, No., 11-1731, 2012 WL 603293 at *2 (D.N.J. Feb. 22, 2012) (denying motion to appoint
counsel); Jones v. Kearney, No. 99-834, 2000 WL 1876433 at *2 (D.Del. December 15, 2000)
(accord). Accordingly, the Court finds that this does not weigh in Plaintiff’s favor. Further, the
Court is not persuaded by Plaintiff’s bare allegation that his limited access to materials is made
worse by the New Jersey Department of Corrections’ alleged pre-disposition to halt the litigation.
Further, Plaintiff has demonstrated ample ability to present his case. Plaintiff has properly
filed previous motions for appointment of counsel, has successfully won an appeal in this matter,
and has provided thorough, coherent, and well reasoned briefing on this particular application.
Accordingly, this factor weighs against the appointment of counsel. See, e.g., Jones, 2000 WL
1876433 at *2 (discussing petitioner’s filings, finding that petitioner demonstrated ability to
prosecute case without assistance).
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Finally, while the Court recognized that the Tabron factors are non-exhaustive, and other
factors may be considered in weighing Plaintiff’s Application, it is not persuaded by Plaintiff’s
arguments concerning the importance of his case. The Court is simply not prepared to comment on
the relative importance or non-importance of Plaintiff’s case in comparison to the multitude of other
prisoner litigation cases currently before this Court.
Considering these factors in light of the Third Circuit’s admonition that volunteer counsel
time is extremely valuable and should not be requested indiscriminately, the Court will deny
Plaintiff’s Application. The Court recognizes, however, that as this case progresses, the complexity
of the factual issues or the need for additional legal briefing may require the appointment of counsel.
In such an instance, the Court may elect revisit the matter on its own. See Tabron, 6 F.3d at 156
(recognizing that, under 28 U.S.C. § 1915(d), the court may sua sponte appoint counsel at “any point
in the litigation”).

IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s Application is denied.

An appropriate Order

accompanies this Opinion.

S/ Dennis M. Cavanaugh
Dennis M. Cavanaugh, U.S.D.J.
Date:
Orig.:
cc:

March 19 , 2012
Clerk
All Counsel of Record
Hon. Joseph A. Dickson, U.S.M.J.
File

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