CONNER v. MASTRONARDY et al
Filing
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Letter Opinion/Order denying application for Pro Bono Counsel for TERRENCE B. CONNER. Signed by Magistrate Judge Michael A. Hammer on 5/14/15. (DD, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Chambers of
Martin Luther King, Jr. Federal.
Michael A. Hammer
Bldg. & U.S. Courthouse
50 Walnut Street, Room 2042
Newark, NJ 07102
(973) 776-7858
United States Magistrate Judge
May 14, 2015
LETTER OPINION & ORDER
Mr. Terrence Conner, Inmate: #50584, SBI: #190405C
Northern State Prison
168 Frontage Road
P.O. Box 2300
Newark, NJ 07114
Re:
Terrence Conner, pro se v. J. Mastronardy and Dover Twp. Police Department
Civil Action No. 13-3034 (KM)
Dear Litigants:
Presently before the Court is Plaintiff Pro Se’s application for pro bono counsel, filed
under 28 U.S.C § 1915(e)(1). See Appl. for Pro Bono Counsel, Jan. 30, 2015, D.E. 13. For the
reasons set forth below, Plaintiff’s request is denied without prejudice.
Background
Plaintiff Pro Se, Terrence Conner, is currently an inmate at Northern State Prison in
Newark, New Jersey. On May 14, 2013, Plaintiff filed his Complaint against Defendants Officer
J. Mastronardy (“Officer Mastronardy”) and the Dover Township Police Department (“Dover
Police Dept.”) 1 (collectively “Defendants”) asserting claims for false imprisonment, and various
civil rights violations pursuant to 42 U.S.C. § 1983. See Compl., at 1 ¶ 1, 5-6, May 14, 2013,
D.E. 1. Specifically, Plaintiff alleges that on March 16, 2013, Officer Mastronardy stopped him
at a WaWa in Toms River, New Jersey because Plaintiff “fit the description of a drug dealer” and
the Officer was looking for two individuals named Helen and Tate. Id. at 3 ¶¶ 1-2. After
running Plaintiff’s name through the system and determining that there was an active warrant for
his arrest, Officer Mastronardy arrested Plaintiff. Id. at 3, ¶¶ 3-4.
Although Plaintiff’s Complaint asserts claims against the Dover Township Police
Department, it appears that the Toms River Township Police Department filed an Answer to the
Complaint, indicating that Plaintiff improperly pled them as Dover Township Police Department.
See Answer, at 1, Aug. 15, 2014, D.E. 7. For ease of reference, the Court will refer to the
Defendant as originally pled, Dover Police Department.
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Following the arrest, Officer Mastronardy took Plaintiff to the Toms River police station,
where the Officer strip searched Plaintiff. Id. at ¶¶ 4-5. Plaintiff alleges that during the search,
Officer Mastronardy, “repeatedly ran his hands up and down [Plaintiff’s] bare legs and would
sometime [sic] bump into [his] private area.” Id. at ¶ 5. Plaintiff claims that Officer
Mastronardy also “ran his hands through [Plaintiff’s] underwear . . . .” Id. at ¶ 5. Moreover,
Plaintiff maintains that as Officer Mastronardy searched him, six other officers watched,
laughed, and made jokes about Plaintiff’s body. Id. at ¶ 6.
Plaintiff contends that Defendants are liable for unlawfully searching and falsely
imprisoning him. Id. at ¶¶ 5-9. Plaintiff also asserts that Defendants, “developed and maintained
policies exhibiting deliberate indifference to the constitutional rights of persons. . . .” Id. at 5. In
addition, he alleges that “[i]t was the policy and custom of Dover Twp. to fail to exercise
reasonable care in hiring its police officers, including Ptl. Mastronardy and failing to adequately
supervise and train its police officers . . . .” Id. at 6.
Plaintiff filed his Complaint and an application to proceed in forma pauperis (“IFP”) on
May 14, 2013. See Compl. May 14, 2013. On May 14, 2014, the District Court granted
Plaintiff’s IFP application. See Order, May 14, 2014, D.E. 4. On May 15, 2014, the District
Court dismissed Plaintiff’s unlawful arrest/false imprisonment claim against Officer
Mastronardy for failure to state a claim. See Opinion and Order, May 14, 2014, D.E. 3, 4. The
District Court permitted Plaintiff to proceed with his claims of unlawful search against Officer
Mastronardy and the unconstitutional policy and failure to train claims against the Dover Police
Dept. See id.
Discussion
In civil cases, neither the Constitution nor any statute gives civil litigants the right to
appointed counsel. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997) (citations omitted).
However, district courts, have broad discretion to determine whether appointment of counsel is
appropriate under 28 U.S.C. §1915(e). See Montgomery v. Pinchack, 294 F.3d 492, 498 (3d Cir.
2002) (providing courts may request the appointment of counsel) (citing Tabron v. Grace, 6 F.3d
147, 153 (3d Cir. 1993)). Appointment of counsel may be made at any point in the litigation,
including sua sponte by the Court. Montgomery, 294 F.3d at 498 (citing Tabron, 6 F.3d at 156).
To determine the appropriateness of appointing counsel, courts in the Third Circuit
considers the framework established in Tabron v. Grace. See 6 F.3d at 156-57. Under the
Tabron 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 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.
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Parham, 126 F.3d at 457-58 (citing Tabron 6 F.3d at 155-58 n. 5). This is a non-exhaustive list,
intended to aid the Court in determining whether it is appropriate to appoint counsel.
Montgomery, 294 F.3d at 499 (quoting Parham, 126 F.3d at 457; see also 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. The Third Circuit maintains 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 (citing Parham, 126
F.3d at 458).
Here, the Court assumes that Plaintiff’s claims have merit. Even so, after carefully
weighing the Tabron factors, the Court finds that appointment of counsel is not warranted at this
time.
First, Plaintiff appears able to present his case. When examining the ability to present a
case, courts consider a party’s “education, literacy, prior work experience, and prior litigation
experience.” Tabron, 6 F.3d at 156. When a plaintiff is incarcerated, courts will also consider
the restraints in place by virtue of confinement. Id. Here, Plaintiff has not provided his
educational background, prior work history or prior litigation experience. However, the record
establishes that Plaintiff is actively involved in this litigation. In that regard, Plaintiff’s
submissions to the Court demonstrate an ability to clearly articulate a factual and legal basis for
his claims. For example, in his Complaint, Plaintiff details the factual allegations underlying his
claims, provides relevant dates and parties, sets forth specific common law and statutory claims,
and requests specific relief. See Compl., May 14, 2013, D.E. 1. In addition, Plaintiff appears
able to prepare and file the necessary documents to proceed with this litigation. Thus far,
Plaintiff has filed: (1) a Complaint, see id.; (2) letters to the Court inquiring as to the status of
his case, see Pl.’s Ltr., Sept. 16, 2013, D.E. 2, notifying the Court of a change in address, see
Pl.’s Ltr., Aug. 19, 2014, D.E. 8, and requesting counsel, see Pl.’s Letter-Appl., Jan. 30, 2015,
D.E. 13; and (3) a proposed discovery plan, see Prop. Discovery Plan, Dec. 16, 2014, D.E. 11.
Thus, there is nothing in the record to suggest that Plaintiff cannot present his case without the
assistance of counsel. Therefore, this factor weighs against appointment.
Second, Plaintiff’s legal issues are not complex. Complexity would warrant appointment
of counsel “where the law is not clear, [as] it will often best serve the ends of justice to have both
sides of a difficult legal issue presented by those trained in legal analysis.” Tabron, 6 F.3d at
156. Courts also consider the “proof going towards the ultimate issue and the discovery issue
involved.” Parham, 126 F.3d at 459. In this case, Plaintiff’s remaining claims are the § 1983
claims for the alleged unlawful search, the unconstitutional policy, and the failure to train. See
Opinion & Order, May 14, 2014, D.E. 3, 4. In his application for pro bono counsel, Plaintiff
fails to explain why the facts and circumstances surrounding this case are sufficiently complex to
warrant appointment of counsel. However, the Court notes that in his Complaint, Plaintiff
asserts that the alleged unlawful search occurred on a specific date (March 16, 2013) and a
specific location (at the Toms River Police Dept.). See Compl., at 3, ¶¶ 1, 4. Further, Plaintiff
specifically alleges that the Dover Police Dept. has a specific policy giving rise to the alleged
violations and failed to properly train its police officers. See id. at 5-6. Nothing about these
claims is so complex as to weigh in favor of appointing counsel. See Tabron, 6 F.3d at 158
(denying appointment of counsel because “the legal issues . . . [did] not appear to be complex,
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and the applicable law [was] clear.”). Therefore, this factor weighs against the appointment of
counsel.
Third, “where claims are likely to require extensive discovery and compliance with
discovery rules, appointment of counsel may be warranted.” Tabron 6 F.3d at 156 (citing Rayes
v. Johnson, 969 F.2d 700, 703 (8th Cir. 1992). Courts should also consider the extent to which
prisoners . . . may face problems in pursing their claim.” Tabron, 6 F.3d at 156. In this case,
Plaintiff has not established that he is unable to conduct factual discovery. While the case is still
in its early stages, Plaintiff has filed a proposed discovery plan. See Prop. Discovery Plan, Dec.
16, 2014, D.E. 11. It is clear from that Plan that Plaintiff can articulate the specific discovery
necessary and relevant to his claims. For example, regarding his Monell claims, Plaintiff
indicates that he will need discovery concerning the Dover Police Dept.’s strip search policies
and procedures. See id. at ¶ 10(a). Moreover, Plaintiff indicates in his Discovery Plan that he
does not anticipate any problems related to discovery. See id. at ¶ 11. Thus, this factor also
weighs against the appointment of counsel.
Fourth, the Court considers whether a case will turn on credibility determinations since
“it is more likely that the truth will be exposed where both sides are represented by those trained
in the presentation of evidence and in cross examination.” Abulkhair v. U.S. Postal Serv., No.
13-7796 (KM), 2014 WL 1607379, at *4 (D.N.J. Apr. 22, 2014) (citing Tabron, 6 F.3d at 156).
Because most cases will turn on credibility determinations, the Third Circuit requires that the
“courts should determine whether the case is solely a swearing contest.” Montgomery, 294 F.3d.
492, 505 (3d Cir. 2002) (citing Parham, 126 F.3d at 460). Here, Plaintiff claims that the Officer
Mastronardy subjected him to an unlawful search and that the Dover Police Dept. maintains an
unconstitutional policy and practice that resulted in the instant civil rights. See Compl., at 1, ¶ 2,
3-4, ¶¶4-7 May 14, 2013, D.E. 1. Plaintiff, however, fails to address whether his case will hinge
on the credibility of the parties’ witnesses. This Court notes, however, that this case is still in its
early stages, and thus, it is possible that Plaintiff’s case will turn on credibility determinations.
Therefore, this factor weighs neither for nor against the appointment of counsel. See, e.g.,
Johnson, 2009 WL 276098, at *3 (concluding that the fourth Tabron factor was neutral where
even though the plaintiff provided three witnesses to an alleged excessive force incident “it [was]
too early to determine” if the case would result in a “swearing contest”).
Fifth, the appointment of counsel is often warranted when expert testimony is required to
establish a claim. Tabron, 6 F.3d at 156. Because Plaintiff has not shown the need for expert
testimony, this factor weighs against appointment.
Sixth, the Court will consider a plaintiff’s ability to afford and retain counsel. See
Tabron, 6 F.3d at 156. Here, Plaintiff was certified to proceed IFP. See Order & Opinion, May
14, 2014, D.E. 3, 4]. A grant to proceed IFP, however, while a necessary condition for having
counsel appointed, is not, without more, sufficient to appoint counsel. See Clinton v. Jersey City
Police Dep’t, No. 07-5686, 2009 WL 2230938, at *1 n.4 (D.N.J. July 24, 2009) (“While
indigence is a prerequisite for the appointment of counsel, indigence alone does not warrant
appointment of counsel absent satisfying other Tabron factors.”). Here, other than the District
Court’s order granting IFP, there is scant information establishing that Plaintiff cannot afford and
retain counsel. Accordingly, this factor weighs against appointing counsel.
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Conclusion
For all of these reasons, the Court denies Plaintiff’s application of pro bono counsel
without prejudice.
So Ordered,
s/ Michael A. Hammer_______________________
UNITED STATES MAGISTRATE JUDGE
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