FARMER v. LANIGAN et al
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NOT FOR PUBLICATION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.
OPINION AND ORDER ON
PLAINTIFF’S APPLICATION FOR
APPOINTMENT OF PRO BONO
COUNSEL [D.E. 134]
Gary Lanigan, et al.,
STEVEN C. MANNION, United States Magistrate Judge
This matter comes before the Court on plaintiff Allen J.
Farmer’s (“Plaintiff”) Application for Appointment of Pro Bono
(ECF Docket Entry No. (“D.E.”) 134).
Federal Rules of Civil Procedure 78, no oral argument was heard.
reasons stated below, Plaintiff’s application is GRANTED.
BACKGROUND AND PROCEDURAL HISTORY
This concerns alleged constitutional violations pursuant to
42 U.S.C. § 1983.
(D.E. 1, Compl.).
Plaintiff alleges he was
Corrections to New Jersey State Prison.
separate suits against the Union County Jail and its personnel.
On July 12, 2013,
On March 11,
On May 8, 2015, Plaintiff filed a
letter brief in further support of his application.
application for pro bono counsel.
application for pro bono counsel. (D.E. 30).
Plaintiff to apply for the appointment of
In civil cases, neither the Constitution nor any statute
gives civil litigants the right to appointed counsel. See Parham
appointment of counsel is appropriate under 28 U.S.C. § 1915(e).
See Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002)
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
Under this framework, the Court must first assess
"whether the claimant's case has some arguable merit in fact and
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;
investigation will be necessary and the
ability of the plaintiff to pursue such
(4) the amount a case is likely to turn on
(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.
Plaintiff argues that while his case has substantial merit,
training in the law and has only completed the tenth grade,
civil matter. (D.E. 134 at 5).
Plaintiff further asserts his
limit his ability to litigate this matter because he does not
access library materials through the prison paralegals.
Plaintiff also argues that his incarceration and lack of
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
“cannot concentrate on matters for very long.” Id. at 9-10.
The Union County Defendants oppose Plaintiff’s application
for pro bono counsel.
The Union County Defendants
assert that discovery in this matter has ended and Plaintiff’s
application is “inappropriate at this stage of the litigation.”
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).
The Rutgers Defendants also
discovery should not be re-opened.
In analyzing this case pursuant to the Tabron factors, the
Court finds appointment of pro bono counsel is appropriate at
determined that Plaintiff’s claims have “arguable merit,” and
concludes that there is little doubt in Plaintiff’s ability to
Defendants, and his handling of status conferences.
Further, though the legal issues in this matter are not
particularly complex, the
inadequate medical treatment claims
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.
“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.
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
claims were based on reduction, change and/or elimination of his
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
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.
In sum, the Court finds, as did the court in Parham, that
appointment of pro bono counsel, thus significantly minimizing
weighs so heavily in favor of the appointment of counsel in this
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
Original: Clerk of the Court
Hon. Susan D. Wigenton, U.S.D.J.
cc: All parties
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