IGLESIAS v. BOROUGH OF CLIFFSIDE PARK PLANNING BOARD et al

Filing 4

Order denying application for Pro Bono Counsel. Signed by Judge William J. Martini on 2/19/13. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
EDITH IGLESIAS
12-CV-7612-WJM

Plaintiff,
v.
BOROUGH OF CLIFFSIDE PARK, et al.,

MEMORANDUM
OPINION & ORDER

Defendants

This matter comes before the Court on pro se Plaintiff Edith Iglesias’s
motion for appointment of pro bono counsel under 28 U.S.C. § 1915(e)(1). For the
reasons stated below, the Court will DENY the motion.
On January 19, 1999, Ms. Iglesias purchased a home located at 360 Gorge
Road in Cliffside Park, New Jersey. Apparently, in 2005 the zoning board of
Cliffside Park granted a variance allowing townhouses to be construed at 350
Gorge Road, next door to Iglesias. At some point, Iglesias claims, Cliffside Park
gave Iglesias’s easement rights to the owners of 350 Gorge Road. Iglesias alleges
that the private construction on 350 Gorge Road made her own driveway unsafe.
She also alleges that Cliffside Park improperly assessed her property taxes, and
that Cliffside Park inspectors approved faulty construction on her property so as to
allow contractors to “cash out.”
Section 1915(e)(1) provides that “[t]he court may request an attorney to
represent any person unable to afford counsel.” District courts have “broad
discretion” to decide whether requesting counsel is appropriate, may request
counsel at any point in the litigation, and may do so sua sponte. Montgomery v.
Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Tabron v. Grace, 6 F.3d 147,
153 (3d Cir. 1993)). As an initial matter, the Court must first determine if the party
seeking counsel has an underlying case with arguable merit in fact and law. Id. at
498-99. Once the claim has passed that threshold, the Court then considers the
following list of criteria to assess whether requesting counsel would be
appropriate: (1) the plaintiff’s ability to present his or her own case; (2) the
difficulty of the particular legal issues; (3) the degree to which factual investigation
will be necessary and the ability of the plaintiff to pursue investigation; (4) the
plaintiff’s capacity to retain counsel on his or her own behalf; (5) the extent to
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which a case is likely to turn on credibility determinations, and (6) whether the
case will require testimony from expert witnesses. Id. at 499. The list is nonexhaustive, and the Court may consider other facts or factors it determines are
important or helpful. Id.
While some of Iglesias’s claims appear to lack merit, it is conceivable that
Iglesias might be able to state a claim for an impermissible taking under the Fifth
Amendment. As such, the Court finds that sua sponte dismissal is not warranted.
Nevertheless, the Court finds that it would not be appropriate to appoint pro
bono counsel at this juncture. First, Iglesias has already demonstrated an ability to
perform the necessary factual investigation. She has provided the Court with
property deeds, reports from consultants and engineers, and a survey report from a
professional land surveyor. Second, while Iglesias might have difficulty pursuing
this case by herself, it appears that she is being helped by her daughter Nancy
Iglesias, who has a power of attorney.
For the foregoing reasons and for good cause shown;
IT IS on this 19th day of February 2013, hereby,
ORDERED that the Iglesias’s application for pro bono counsel is
DENIED. The Court is willing to entertain a subsequent motion for pro bono
counsel at a later stage of this case.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.

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