FARMER v. LANIGAN et al

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, )

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NOT FOR PUBLICATION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

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