ANDREWS v. WHITTAKER

Filing 6

OPINION. Signed by Magistrate Judge Joseph A. Dickson on 9/20/13. (gmd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ROBERT LEE ANDREWS, JR.,
Plaintiff,

Civil Action No. 13-4812 (ES) (JAD)

v.
JOAN E. WHITTAKER of the Irvington
Public Library,

OPINION

Defendant.

JOSEPH A DICKSON, U.S.M.J.

This matter comes before the Court upon application by pro se Plaintiff Robert
Andrews ("Plaintiff') for the appointment of pro bono counsel pursuant to 28 U.S.C §
1915(e)(1 ). Pursuant to Rule 78 of the Federal Rules of Civil Procedure, no oral argument

as

heard. After carefully considering the Plaintiffs submissions, and based upon the following, · is
the finding of the Court that Plaintiffs application is denied.
I.

BACKGROUND AND PROCEDURAL HISTORY

On or about August 12, 2013, Plaintiff filed suit against his alleged employer, defen

t

Joan E. Whittaker of the Irvington Public Library ("Defendant"), alleging employ
discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). (ECF

o.

1). Plaintiff, a security officer at the Irvington Public Library, alleges that in September of2 12
Defendant asked whether he could work every other Saturday.

(Jd.).

Plaintiff alleg ly

explained that he was unable to do so due to obligations related to the care of his disa
daughter. (Id.). Shortly thereafter, Plaintiff alleges that his employment relationship with he

Irvington Public Library was terminated without explanation. (Id.). Plaintiff alleges that

e

termination constituted discrimination "on the basis of sex (male) and unlawful retaliation, in
violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII)." (See Ex. 1 to I.
Compl., ECF No. 1-1).
Plaintiff filed the instant application for pro bono counsel with his Complaint on Au

st

12, 2013, citing his indigent status. This Court subsequently granted Plaintiffs applicatio
proceed in forma pauperis on September 16, 20 13.

II.

LEGALSTANDARD
Civil litigants possess neither a constitutional nor statutory right to appointed coun el.

E.&,

Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). However, district courts re

granted broad discretion to request the appointment of attorneys to represent indigent c il
litigants, and may appoint counsel sua sponte at any point in litigation. 28 U.S.C. § 1915 ),
(e)(l). When determining whether appointment of pro bono counsel is warranted, courts
follow the framework established in Tabron v. Grace, 6 F.3d 147, 155, 158 (3d Cir. 1993).

a

threshold matter, the Court must first determine that the plaintiffs claim has "arguable meri
fact and law." Id. at 155. If the claim has merit, the Court must then consider the other -"'-T:::::.a"'F=
factors, namely whether: (1) the pro se party lacks the ability to present an effective case wit
an attorney; (2) the legal issues are complex, or, if the ultimate legal issues are not complex,
pro se party lacks the familiarity with the rules of evidence and discovery needed to trans te
understanding of the law into presentation of the proofs; (3) factual investigation will
necessary and the prose party is not adequately able to pursue said investigation; (4) theca
likely to tum on credibility determinations; (5) the case will require expert testimony; and (6) he

pro se party is unable to attain and afford counsel on his/her own behalf.

Id. at 155- 6.

"[C]ourts should exercise care in appointing counsel because volunteer lawyer time is a preci

s

commodity and should not be wasted on frivolous cases." Parham, 126 F.3d at 458.

III.

DISCUSSION

As an initial matter, this Court must first determine whether Plaintiffs Complain 1s
meritorious.

In considering whether a pro se plaintiffs complaint is meritorious, co

s

traditionally give "greater leeway where they have not followed the technical rules of plead
and procedure."

Tabron, 6 F.3d at 154.

Here, the District Court has granted Plainti

s

application to proceed in forma pauperis and allowed his claims to proceed past sua spo
dismissaL (See September 16, 2013, Order, ECF No.4). Thus, for the purposes of this Opin n
only, the Court finds that Plaintiff's claims arguably have some merit.
consideration of the factors set forth in Tabron, the Court finds that Plaintiff is not entitle
appointed counsel at this time.
First, the Court must consider whether Plaintiff is capable of presenting his own case. A
plaintiffs ability to present his own case is the most significant of the six Tabron factors.
Bondarenko v. Hackensack Univ. Med. Ctr., 2009 U.S. Dist. LEXIS 80579, at *2 (D.N.J. S
4, 2009). In making this determination, "plaintiffs education, literacy, prior work experie
and prior litigation experience" may be considered. Tabron, 6 F.3d at 156. Plaintiff's acces to
resources, such as a computer or telephone, should also be considered. See Parham, 126 F .3 at
459.

In the instant matter, Plaintiff has adequately articulated the factual circumsta

surrounding the alleged employment discrimination that forms the basis of his Complaint,
has filed his Complaint and IFP application on his own behalf in an articulate and comprehen

d

manner. Plaintiff has not indicated that he needed assistance to perform these tasks or la s
access to a computer or typewriter, and it appears that Plaintiff has the ability to effectiv ly
present his case without an attorney. Plaintiff has not provided any information regarding

s

education level or prior litigation experience. After considering all of the above, the Court
conclude that this factor weighs against Plaintiff.
Next, the Court must consider the complexity of the particular issues involved.
Tabron, 6 F .3d at 156. The Third Circuit has explained that "where the law is not clear, it
often best serve the ends of justice to have both sides of a difficult legal issue presented by th se
trained in legal analysis." Id. Here, Plaintiff presents a routine employment discrimination c e.
The factual circumstances underlying Plaintiffs complaint are easily understood and, at

is

stage of the litigation, there is nothing that suggests discovery or presentation ofthe case wil
difficult or complex. See Growalt v. Stop & Shop Supermarket Co., LLC, 2011 U.S.
LEXIS 132074, at *2 (D.N.J. Nov. 15, 2011). Consequently, the second Tabron factor
weighs against Plaintiff.
The third Tabron factor concerns the degree to which factual investigation will be
necessary, and the pro se litigant's ability to pursue that investigation. Tabron, 6 F.3d at 1
Plaintiff has provided no evidence showing that he is unable. to undertake the necessary fac
investigation in this matter. Plaintiff was a party to the transactions and occurrences from w
his claims arise, and is therefore familiar with the facts of this case.

Gonzalez v. Pas

Cnty. Prob., 2005 U.S. Dist. LEXIS 18890, at *7 (D.N.J. Aug. 24, 201 0). Accordingly, the
Tabron factor weighs against Plaintiff.

1

Next, the Court considers whether the case will turn on credibility determinations. In t s
regard, the Court shouldconsider whether the case will essentially amount to a "swear g
contest." Parham, 126 F.3d at 460. It is not clear at this early stage of litigation whether
matter will become a swearing contest, however, at this point the Court finds that it will
Plaintiff alleges that his employment was terminated in retaliation for his inability to w rk
Saturdays. Hence, it does not appear that there will be any question whether the terminat n
occurred or whether defendant was responsible for the allegations in Plaintiffs compl
Rather, the primary issue will likely be the motivation behind the defendant's actions

d

whether the termination violated Plaintiffs rights. Therefore, the fourth factor weighs aga· st
Plaintiff.
The fifth Tabron factor asks whether the case will require expert testimony. There is o
indication at this stage of litigation that such testimony will be necessary, and therefore
factor also weighs against Plaintiff.
Finally, although the Court notes that Plaintiff is indigent and alleges that he is unabl to
attain or afford counsel, this factor without satisfaction of any other Tabron factors is not eno gh
to warrant the appointment of counseL See Thrower v. New Jerse De artment of Correcti
2007 WL 3376717, *4 (D.N.J. Nov. 7, 2007).

s,

Thus, the Court finds, after collecti

considering the aforementioned factors, that appointment of counsel is not warranted at

is

juncture. The Court notes, however, that pursuant to the authority granted by 28 U.S.

§

1915(d), the Court retains the discretion to appoint counsel at any point in the litigation ua
sponte.

IV.

CONCLUSION

For the foregoing reasons, Plaintiffs application is denied.
accompanies this Opinion.

cc.

Honorable Esther Salas, U.S.D.J.

An appropriate Or er