GROWALT v. THE STOP & SHOP SUPERMARKET CO., LLC et al
Filing
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LETTER OPINION & ORDER denying application for Pro Bono Counsel for RANDY M. GROWALT. Signed by Magistrate Judge Michael A. Hammer on 11/15/11. (dc, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Chambers of
Martin Luther King Jr, Federal Bldg.
& U.S. Courthouse
50 Walnut Street, Room 3053
Newark, NJ 07102
(973) 776-7858
Michael A. Hammer
United States Magistrate Judge
November 15, 2011
LETTER OPINION & ORDER
Randy M. Growalt, pro se
329 Wagraw Road, Unit 8
Hawthorne, NJ 07506
RE:
Growalt v. The Stop & Shop Supermarket Co., LLC, et al.
Civil Action No. 11-5882 (FSH)
Dear Litigants:
Presently before the Court is Plaintiff’s October 11, 2011, application for pro bono
counsel under 28 U.S.C. § 1915(e)(1). For the reasons set forth below, Plaintiff’s request is
denied without prejudice.
Background
On October 11, 2011, Plaintiff filed a Complaint alleging employment discrimination
under Title VII of the Civil Rights Act of 1964, and an application to proceed in forma pauperis.
(Compl., Oct. 11, 2011, ECF No. 1.) Plaintiff alleges that Defendants terminated his
employment for disability discrimination. (Id. ¶¶ 9–10.)
On that same day, Plaintiff also filed an application for pro bono counsel. (Pro Bono
Application, Oct. 11, 2011, ECF No. 2.) Plaintiff states that (a) he is being treated for
depression, bi-polar tendencies, and pedophilia; (b) he has no legal experience and cannot present
a case without counsel; (c) the legal issues are complex as he “is claiming discrimination against
disabilities not challenged at this level before”; (d) he has no way of accessing documents held
by Defendants; and (e) he “does not want [his] criminal record to play into credibility issues.”
(Id. at Question 3.) Plaintiff also states that “no one will take on a case for a registered sex
offender without large retainers unaffordable to plaintiff.” (Id. at Question 4.)
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On October 17, 2011, the Court granted Plaintiff in forma pauperis status, but determined
that Plaintiff’s Complaint was frivolous because it raised no federal grounds upon which relief
could be granted. (Order, Oct. 17, 2011, ECF No. 3.) The Court directed Plaintiff to filed an
Amended Complaint by November 17, 2011, or the Court would dismiss the Complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i). (Id.)
Discussion
In civil cases, neither the Constitution nor any statute gives civil litigants the right to
appointed counsel. Parham v. Johnson, 126 F.3d 454, 456–57 (3d Cir. 1997). District courts,
however, have broad discretion to determine whether appointment of counsel is appropriate
under 28 U.S.C. § 1915(e). Montgomery v. Pinchack, 294 F.3d 492, 498 (3d Cir. 2002) (citing
Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)). Appointment of counsel may be made at any
point in the litigation, including sua sponte by the Court. Montgomery, 294 F.3d at 498 (citing
Tabron, 6 F.3d at 156).
In the Third Circuit, the Court considers the framework established in Tabron v. Grace.
Montgomery, 294 F.3d at 498–99. Under the Tabron framework, the Court must first assess
“whether the claimant’s case has some arguable merit in fact and law.” Montgomery, 294 F.3d at
499 (citing Tabron 6 F.3d at 155.) If the applicant’s claim has some merit, the Court considers
the following factors:
(1) the plaintiff’s ability to present his or her own case;
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be necessary and the ability of
the plaintiff to pursue such investigation;
(4) the amount a case is likely to turn on credibility determinations;
(5) whether the case will require the testimony of expert witnesses;
(6) whether the plaintiff can attain and afford counsel on his own behalf.
Parham, 126 F.3d at 457–58 (citing Tabron, 6 F.3d at 155–56, 157 n.5). This list is not
exhaustive, but provides guideposts for the Court. Montgomery, 294 F.3d at 499 (citing Parham,
126 F.3d at 457). A court’s decision to appoint counsel “must be made on a case-by-case basis.”
Tabron, 6 F3d at 157–58. Also, the Court of Appeals of the Third Circuit has stated that “courts
should exercise care in appointing counsel because volunteer lawyer time is a precious
commodity and should not be wasted on frivolous cases.” Montgomery, 294 F.3d at 499
(Parham, 126 F.3d at 458.)
Here, the Court has determined that Plaintiff’s Complaint, as presently framed, is
frivolous. (Order, Oct. 17, 2011.) Accordingly, Plaintiff’s pro bono application fails as
Plaintiff’s claim has no “arguable merit in fact and law.” Montgomery, 294 F.3d at 498–99
(citing Tabron 6 F.3d at 155.) But even if the Court assumed that Plaintiff’s application has
merit, consideration of the Tabron factors does not demonstrate that appointment is warranted at
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this time.
First, Plaintiff has not demonstrated that he will be unable to present his case. When
considering a plaintiff’s ability to present a case, courts generally consider a plaintiff’s
“education, literacy, prior work experience, and prior litigation experience.” Tabron, 6 F.3d at
156. If a plaintiff is incarcerated, courts also consider restraints in place by virtue of the
confinement. Id. Here, Plaintiff does not offer any information about his education, but his
in forma pauperis application states that he has twelve years of schooling. (In Forma Pauperis
Application at Question 13, Oct. 11, 2011, ECF No. 1.) Nevertheless, Plaintiff’s submissions are
cogent, which indicates that Plaintiff can request relief and express a basis for that relief. Also,
Plaintiff is being treated for psychological issues, but does not indicate that these issues are so
severe that he is unable to present his case. See, e.g., Bondarenko v. Hackensack Univ. Med.
Ctr., Civ. No. 07-3753, 2009 WL 2905373, at *2 (D.N.J. Sept. 4, 2009) (observing that a
plaintiff’s treatment for depression did not impair his ability to be coherent and respond
effectively). Also, to the extent that Plaintiff does not want his criminal record to affect
credibility issues, a desire for a particular outcome on an evidentiary issue is not a basis for
appointment of counsel. Further, Plaintiff states that he has no legal experience, but this is
insufficient by itself to warrant counsel.1 Accordingly, this factor does not favor appointment of
counsel.
Second, Plaintiff’s claims do not involve complex legal issues. Complexity supports
appointment “where the law is not clear, [as] it will often best serve the ends of justice to have
both sides of a difficult legal issue presented by those trained in legal analysis.” Tabron, 6 F.3d
at 156 (quoting Macklin v. Freake, 650 F.2d 885, 889 (7th Cir. 1981); accord Montgomery, 294
F.3d at 502. Court also consider “the proof going towards the ultimate issue and the discovery
issues involved.” Parham, 126 F.3d at 459; see also Montgomery, 294 F.3d at 502–03 (finding
appointment appropriate when, despite simple legal issues, discovery and presentation
difficulties compromised plaintiff’s case). Here, Plaintiff’s factual claims are easy to understand,
and claims of employment discrimination do not necessarily warrant appointment of counsel.
See Bondarenko, 2009 WL 2905373, at *3. But see Gonzalez v. Passaic Cnty. Prob., Civ. No.
04-3001, 2005 WL 2077294, at *6 (D.N.J. Aug. 25, 2005) (finding that shifting burden of a Title
VII claim is a “complex legal issue”). At this stage of the litigation, the complexity of the legal
issues are not yet apparent. See, e.g., Pressley v. E. Dist. Precinct, Civ. No. 09-3215, 2010 WL
988722, at *1 n.3 (D.N.J. Mar. 15, 2010). Accordingly, this factor weighs against Plaintiff as his
claims do not present complex legal issues at this time.
Third, there is no indication that Plaintiff lacks the ability to conduct a factual
investigation without the assistance of counsel. Plaintiff is no longer incarcerated and nothing
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Although the Court takes Plaintiff at his word that he has no legal experience, the public docket contains
two cases with a “Randy Growalt” as the plaintiff. See Growalt v. Hayman, Civ. No. 07-491 (D.N.J. filed Jan. 30,
2007); Glenn v. Hayman, Civ. No. 07-112 (D.N.J. filed Jan. 9, 2007). If Plaintiff reapplies for appointment of pro
bono counsel, the Court directs Plaintiff to explain any inconsistency.
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suggests that discovery in this case would be complicated. Cf. Tabron, 6 F.3d at 156
(considering the extent that confined parties may face problem when confronted with extensive
discovery and compliance with complex discovery rules). If this case proceeds, Plaintiff will
have access to the discovery tools in Federal Rules of Civil Procedure to investigate his claims as
well as any defenses or counterclaims. See Fed. R. Civ. P. 26. Thus, this factor also weighs
against appointment.
Fourth, it is premature for the Court to conclude, that this case will turn on credibility
determinations. Because “it is difficult to imagine” a case where credibility is not important, the
Court of Appeals for the Third Circuit has specified that “when considering this factor, courts
should determine whether the case [is] solely a swearing contest.” Parham, 126 F.3d at 460.
Here, Plaintiff’s Complaint annexes a grievance letter indicating that there are different accounts
of Plaintiff’s termination. (See Pl.’s Letter re: Wrongful Termination Grievance, dated Nov. 25,
2010, ECF No. 1.) Nevertheless, no defendant has entered this case, let alone offered a defense,
and thus it is too early to conclude that this case will be “solely” a swearing contest. Likewise,
Plaintiff’s concern that his criminal record will impact his credibility as an evidentiary issue is
also premature. Accordingly, this factor also weighs against appointment.
Fifth, there is no indication this case will require expert testimony, and thus this factor
does not favor appointment.
Sixth, Plaintiff’s assertions regarding his capacity to retain counsel are insufficient.
Plaintiff has in forma pauperis status, but Plaintiff has not described any efforts to obtain counsel
on his own. Plaintiff only states that “no one will take on a case for a registered sex offender
without large retainers unaffordable to plaintiff.” (Pro Bono Application at Question 4.)
Accordingly, this factor does not favor appointment. Cf. Montgomery, 294 F.3d at 505
(considering in forma pauperis status); Parham, 126 F.3d at 461 (stating that there was no
evidence plaintiff could have afforded counsel and that he made every effort possible to do so).
Conclusion
For all these reasons, the Court denies Plaintiff’s application for the appointment of pro
bono counsel without prejudice.
If Plaintiff reapplies for appointment of pro bono counsel in this case, Plaintiff must state
if he has had any involvement in the following case: (1) Growalt v. Hayman, Civ. No. 07-491
(D.N.J. filed Jan. 30, 2007); (2) Glenn v. Hayman, Civ. No. 07-112 (D.N.J. filed Jan. 9, 2007).
So Ordered,
s/Michael A. Hammer
UNITED STATES MAGISTRATE JUDGE
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