Filing 158

Opinion/Order Granting Pro Bono Application; that after entry of pro bono counsels appearance on the docket, counsel shall contact the undersigned to schedule a telephone status conference. Signed by Magistrate Judge Steven C. Mannion on 5/28/15. (DD, )

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY NOT FOR PUBLICATION Allen J. Farmer, Civil Action No. Plaintiff, 2:12-cv-5716 (SDW)(SCM) v. OPINION AND ORDER ON PLAINTIFF’S APPLICATION FOR APPOINTMENT OF PRO BONO COUNSEL [D.E. 134] Gary Lanigan, et al., Defendants. STEVEN C. MANNION, United States Magistrate Judge I. INTRODUCTION This matter comes before the Court on plaintiff Allen J. Farmer’s (“Plaintiff”) Application for Appointment of Pro Bono Counsel. (ECF Docket Entry No. (“D.E.”) 134). Pursuant to Federal Rules of Civil Procedure 78, no oral argument was heard. Upon consideration of the parties’ submissions and for the reasons stated below, Plaintiff’s application is GRANTED. II. BACKGROUND AND PROCEDURAL HISTORY This concerns alleged constitutional violations pursuant to 42 U.S.C. § 1983. impermissibly (D.E. 1, Compl.). transferred from Plaintiff alleges he was Union County Corrections to New Jersey State Prison. alleges he inadequate suffered medical physical care in Id. injuries, response to Department Plaintiff also retaliation, his of filing of and two separate suits against the Union County Jail and its personnel. Id. 1 On November U.S.D.J. 14, granted pauperis, 2012, the Plaintiff’s pursuant to 28 Honorable application U.S.C. § Susan to (D.E. 3, 4). On June 25, 2013, Honorable application. On Madeline C. Arleo, Plaintiff U.S.M.J. February the 11, Union application. Defendants, 2015, Plaintiff permitting made counsel. his first On July 12, 2013, denied Ahsan filed Plaintiff’s Defendants 141). On and March Gallagher (D.E. 145). the (D.E. 134). County (D.E. application. opposed 26, also instant On March 11, 2015, opposed Plaintiff’s the Rutgers Plaintiff’s On May 8, 2015, Plaintiff filed a letter brief in further support of his application. III. forma (D.E. 32). application for pro bono counsel. 2015, and in pro bono application for pro bono counsel. (D.E. 30). the Wigenton, proceed 1915(a), Plaintiff to apply for the appointment of D. (D.E. 156). LEGAL STANDARD In civil cases, neither the Constitution nor any statute gives civil litigants the right to appointed counsel. See Parham v. Johnson, courts, 126 F.3d 454, however, have broad 456-57 (3d discretion Cir. to 1997). District determine whether appointment of counsel is appropriate under 28 U.S.C. § 1915(e). See Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Tabron Appointment of v. Grace, counsel 6 may F.3d be 147, made 153 at (3d any Cir. point 1993)). in the litigation, including sua sponte by the Court. Montgomery, 294 F.3d at 498. The Third Circuit has established factors which the courts may consider in determining whether appointment of counsel is appropriate. See Johnson v. Stempler, 373 F. App'x 151, 154 (3d Cir. 2010). Under this framework, the Court must first assess "whether the claimant's case has some arguable merit in fact and 2 law." Id. If the applicant's claim has some merit, the Court then 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. This is a non-exhaustive list, intended to aid the Court in determining whether it is appropriate to appoint counsel. Carson v. Mulvihill, 488 F. App'x 554, 558 (3d Cir. 2012). A court's decision to appoint counsel "must be made on a case-by-case basis." Tabron, 6 F.3d at 158. Importantly, the Court of Appeals for 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. IV. DISCUSSION Plaintiff argues that while his case has substantial merit, he is unable to represent himself because he has no formal training in the law and has only completed the tenth grade, which disadvantages him in proceeding civil matter. (D.E. 134 at 5). incarceration and in this “complicated” Plaintiff further asserts his administrative segregation status severely limit his ability to litigate this matter because he does not 3 have direct access to the prison law library, and can access library materials through the prison paralegals. 6. only Id. at Plaintiff also argues that his incarceration and lack of legal competence inhibits him from preparing proper medical interrogatories, which would also necessitate the retention of medical experts. Id. at 8-9. As an inmate, Plaintiff asserts it is not possible to retain an expert that is necessary to adequately litigate his claims. Id. Lastly, Plaintiff contends that due to the permanent injuries sustained as a result of Defendants’ conduct that resulted in ongoing physical pain, and medication that impairs his cognitive abilities, Plaintiff “cannot concentrate on matters for very long.” Id. at 9-10. The Union County Defendants oppose Plaintiff’s application for pro bono counsel. (D.E. 141). The Union County Defendants assert that discovery in this matter has ended and Plaintiff’s application is “inappropriate at this stage of the litigation.” Id. The Rutgers Defendants also oppose Plaintiff’s application on the basis that discovery has ended because of the late stage of the litigation. (D.E. 145). request that should The Rutgers Defendants also Plaintiff’s discovery should not be re-opened. application be granted, Id. In analyzing this case pursuant to the Tabron factors, the Court finds appointment of pro bono counsel is appropriate at this time. Judge Wigenton and Judge Arleo have previously determined that Plaintiff’s claims have “arguable merit,” and the Court accepts the previous determinations. The Court concludes that there is little doubt in Plaintiff’s ability to present his applications case to the as demonstrated Court, by discovery Plaintiff’s requests numerous propounded on Defendants, and his handling of status conferences. Further, though the legal issues in this matter are not particularly complex, the inadequate medical treatment claims 4 will require an expert witness, and are essentially dispositive in appointing pro bono counsel. In matters where Plaintiff is likely to need an expert witness in medical malpractice claims, Courts have routinely appointed pro bono counsel. 126 F.3d at 460 (finding the need for See Parham, expert witnesses to “weigh[] heavily in favor of appointment of counsel”); see also Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d Cir. 1987)(finding that expert medical opinion is required for a jury to determine the seriousness of a plaintiff’s injuries, if the injuries are not readily apparent as serious, such as gunshot wound); Ramirez v. Nugent, 2014 WL 7404048, 2014 U.S. Dist. LEXIS 178041 (D.N.J. December 30, 2014)(stating the district court appointed the plaintiff pro bono counsel where the plaintiff alleged medical malpractice claims); Thomas v. Adams, 55 F.Supp.3d 552, 2014 U.S. Dist. LEXIS 149050, *12 (D.N.J. October 20, 2014)(stating the court appointed pro bono counsel where the plaintiff’s claims were based on reduction, change and/or elimination of his mental therapy); Arrington v. Middlesex Cnty. Jail, 2014 WL 511782, 2014 U.S. Dist. LEXIS 127230, *4 (D.N.J. September 11, 2014)(stating the court granted the plaintiff’s application for pro bono counsel where the plaintiff pled medical malpractice claims). Here, Plaintiff will likely need expert medical opinion and based on the abundance of the cases in this district, the Court finds it appropriate to grant pro bono counsel in this instance. Defendants’ concern that discovery was to close on March 6, 2015, per January Scheduling Order, (D.E. 127 at ¶ 4) is noted. The Court will hold a status conference after pro bono counsel is appointed to discuss an appropriate discovery extension. 5 V. CONCLUSION In sum, the Court finds, as did the court in Parham, that cases involving medical care claims of require medical expert malpractice medical or inadequate witnesses and the appointment of pro bono counsel, thus significantly minimizing the weight of the other Tabron factors. Since this factor weighs so heavily in favor of the appointment of counsel in this case, the Court will appoint pro bono counsel to represent Plaintiff in this matter. For the foregoing reasons, and good cause shown, IT IS on this DD day of Thursday, May 28, 2015, 1. ORDERED that Plaintiff’s application for appointment of pro bono counsel; and it is further 2. ORDERED that after entry of pro bono counsel’s appearance on the docket, counsel shall contact the undersigned to schedule a telephone status conference; and it is further 3. ORDERED that the Clerk of the Court shall forward a copy of this Order to Plaintiff. 5/28/2015 2:42:35 PM 6 Original: Clerk of the Court Hon. Susan D. Wigenton, U.S.D.J. cc: All parties File 7

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