SWIFT v. PANDEY et al

Filing 75

Opinion and Order denying application for Pro Bono Counsel for BHUWAN PANDEY. Signed by Magistrate Judge Joseph A. Dickson on 12/3/14. (jd, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

v.

Civil Action No.13-cv-00650-JLL-JA

RAMESH PANDEY, et al.,

OPINION AND ORDER

Defendants.

DICKSON, U.S.M.J.

This matter comes before the Court on the second application ofprose Defendant Bhuw
Pandey ("Defendant") for the appointment of pro bona counsel (ECF No.72) (the "Seco d
Application") pursuant to 28 U.S.C. § 1915(e)(l). Pursuant to Rule 78 of the Federal Rules f
Civil Procedure, no oral argument was heard.

After carefully considering the Defendan s

submissions, and based upon the following, it is the finding of the Court that Defendant's Seco d
Application is denied without prejudice.

I.

BACKGROUND

This matter involves a prose Defendant's second application for appointment of pro
bono counsel. This Court previously declined to appoint pro bono counsel to Defendant in an
Opinion dated October 08, 2014. (ECF No. 67). The facts underlying Defendant's initial
request for pro bono counsel are largely identical to those asserted in this renewed application.
1

In his initial application for pro bono counsel, Defendant cited numerous reasons why t e
appointment of counsel was needed, including (1) difficulty understanding the Court's questio
and directions, (2) his lack of a mode of transportation to court hearings, (3) his unfamiliarity
with using computers, and (4) his unfamiliarity with the court's procedures, rules, and
regulations. (Appl. For Pro Bono Counsel, ECF No. 64). Defendant additionally explained
that he could not attain an attorney due to his financial situation. (Id.). In the Second
Application, filed on November 24, 2014, Defendant cited (1) his inability to afford counsel, (
his inability to present the case properly without counsel, (3) his unfamiliarity with evidence
discovery rules, (4) his lack of a mode of transportation to court hearings, and (5) his
unfamiliarity with computers and the court process as his basis for requesting the appointment f
counsel. (Second Application, ECF No. 72).

II.

LEGAL STANDARD

In Tabron v. Grace, the Third Circuit established specific guidelines for determini g
whether the appointment of pro bono counsel is warranted. See 6 F.3d 147, 155, 158 (3d
1993). The Third Circuit emphasized that, as a threshold matter, courts must analyze the subst
of an applicant's underlying claim for merit before engaging in any further evaluation. See id. 0
after a determination that an applicant's claim has merit in fact and law should a court move on o
consider and evaluate the factors outlined in Tabron. See Id. at 155. The other Tabron fact s
include whether:
(1) the pro se party lacks the ability to present an effective case without an attorney;
(2) the legal issues are complex or, the ultimate legal issues are not complex, but the
pro se party lacks the familiarity with the rules of evidence and discovery needed to
2

translate understanding of the law into presentation of the proofs;
(3) factual investigation will be necessary and the party is not adequately able to
pursue said investigation;
(4) the case is likely to tum on credibility determinations;
(5) the case will require expert testimony; and
(6) the party is unable to attain and afford counsel on his/her own behalf.
See Parham v. Johnson, 126 F.3d 454, 357 (3d Cir. 1997); Tabron, 6 F.3d at 155-56.

Courts must consider the ability of the party to present his or her case without the assist
of counsel. See Id. at 156. In making this determination, courts "generally should consider
party's education, literacy, prior work experience, and prior litigation experience." Id. Co

s

should "also consider the difficulty of particular legal issues ... the degree to which fac
investigation will be required and the ability of the indigent party to pursue investigation." Id.

III.

i\N".ALY'SIS

In the Second Application, Defendant again requested appointment of pro bono coun
This Court is not convinced of Defendant's inability to present his defense without an attom y,
especially considering Defendant's coherent and well-organized letter dated November 10, 20

,

setting out numerous defenses. Moreover, this Court finds that it is also unable to determ e
whether appointment of counsel is proper because Defendant has not provided suffici t
information regarding his financial situation. It is not sufficient to merely state that one c

t

afford counsel- the movant must provide sufficient financial information for the Court to prop
analyze one's ability to retain counsel. Finally, as the status of this case has changed little si e
the Court's October 08, 2014 denial of Defendant's request for pro bono counsel, this Court fi
no reason to now appoint pro bono counsel.

3

s

The Court notes, however, that Defendant may renew his application for pro bono coun
at any time. Furthermore, the Court retains the discretion to appoint counsel at any point d
the litigation sua sponte pursuant to 28 U.S.C. § 1915(e).

"IV.

CONCLUSION

For the reasons stated, Defendant's Second Application for appointment of pro bo o
counsel is denied without prejudice.

SO ORDERED.

cc:

Hon. Jose L. Linares, U.S.D.J.

4