GREENE v. PEREZ et al

Filing 156

OPINION. Signed by Magistrate Judge Michael A. Hammer on 7/5/2023. (dam)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RONALD B. GREENE,
v.

Plaintiff pro se,

BRIAN KELLY and DAVIS VALDIVIA,
Bergen County Prosecutor’s Detectives,

Civil Action No. 13-5493 (WJM) (MAH)
OPINION

Defendants.

HAMMER, United States Magistrate Judge
Presently before the Court is Plaintiff’s motion for the appointment of pro bono counsel
pursuant to 28 U.S.C. § 1915(e)(1). Mot. to Appoint Counsel, Apr. 25, 2023, D.E. 145.
Defendants take no position on the motion. Def. Letter, May 22, 2023, D.E. 150. The
Undersigned has considered this matter without oral argument. Fed. R. Civ. P. 78; Local Civ. R.
78.1. For the reasons set forth below, Plaintiff’s motion is granted.
I.

BACKGROUND 1
Plaintiff Ronald B. Greene, pro se, initially filed a Complaint pursuant to 42 U.S.C. §

1983 on September 13, 2013, alleging four causes of action against fifteen Defendants stemming
from his arrest during a controlled drug operation by the Bergen County Prosecutor’s Narcotics

1

The procedural history of this matter is extensive and complex. Because this Court writes
predominantly for the parties, the Background will be abbreviated, elaborating only where
necessary for resolution of the instant motion.

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Task Force. Compl., D.E. 1. Through extensive motion practice, however, many of the
Defendants and claims have been dismissed from the action. 2
As part of an undercover drug operation, Officer Michael Perez posed as a buyer
intending to purchase drugs from another individual. See, e.g., Greene v. Kelly, Civ. No. 202847, 2022 WL 1024611, at *1 (3d Cir. Apr. 6, 2022). Towards the end of the transaction,
Officer Perez came across Plaintiff exiting a vehicle relatively close to him. Id.; Second Am.
Compl. [“SAC”], Apr. 4, 2018, D.E. 58, at 6. Believing that Plaintiff had a gun, Officer Perez
signaled to other officers in the area for Plaintiff’s arrest. Greene, 2022 WL 1024611, at *1.
Responding Officer Brian Kelly (“Defendant Kelly”) tackled Plaintiff and secured him in
handcuffs. Id.; SAC, D.E. 58, at 6-7. Once handcuffed, Defendant Kelly placed his knee on
Plaintiff’s back and struck the back of Plaintiff’s head with an object. Greene, 2022 WL
1024611, at *1. Further, Plaintiff alleges that while still handcuffed, Defendant Davis Valdivia
(“Defendant Valdivia”) “kept his foot on Plaintiff’s neck, increasing the pressure and grinding
his foot into Plaintiff’s neck.” SAC, D.E. 58, at 7. While other officers were originally named in
Plaintiff’s Complaint (i.e., for failing to intervene), the only remaining Defendants in this action

2

On February 29, 2016, the District Court dismissed all but Plaintiff’s excessive force claim
with prejudice. See Op. & Order, D.E.s 30-31. Plaintiff thereafter filed his First Amended
Complaint that named Defendants Kelly, Perez, and two John Doe officers as Defendants. First
Am. Compl., Nov. 21, 2016, D.E. 41. Following further motion practice, the District Court
allowed Plaintiff’s excessive force claim to proceed as to any force applied after Plaintiff had
been handcuffed. See Op. & Order, Apr. 17, 2017, D.E.s 49-50. Plaintiff thereafter filed his
Second Amended Complaint, which is the operative pleading in this matter. Second Am.
Compl., Apr. 4. 2018, D.E. 58. Following the completion of discovery, the District Court
dismissed the Second Amended Complaint on summary judgment. Order Granting Mot. for
Summary Judgment, Aug. 12, 2020, D.E. 112. On appeal, the Third Circuit affirmed in part and
reversed in part. Greene v. Kelly, Civ. No. 20-2847, 2022 WL 1024611 (3d Cir. Apr. 6, 2022).
Specifically, the Third Circuit affirmed the grant of summary judgment as to Defendants
Dombrowski and Zablocki, but ruled that Plaintiff’s claim for excessive force based on posthandcuff conduct could proceed as to Defendants Kelly and Valdivia.
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are Defendants Kelly and Valdivia (together, the “Defendants”). Greene, 2022 WL 1024611, at
*4 (vacating summary judgment in favor of Kelly and Valdivia on Plaintiff’s excessive use of
force claim).
This matter has been proceeding through discovery and extensive motion practice for
approximately ten years. Plaintiff’s application to proceed in forma pauperis (“IFP”) was
originally denied as moot for having paid the filing fee. See Order Denying IFP, Mar. 17, 2015,
D.E. 10. However, Plaintiff’s subsequent application was granted. Order Granting IFP, Oct. 23,
2020, D.E. 116. Although the Honorable William J. Martini granted Plaintiff’s IFP status as to
Plaintiff’s appeal to the Third Circuit, His Honor’s finding of indigence has not materially
changed between that time and now. See Cert. of Ronald B. Greene (“Greene Cert.”), D.E. 1454, ¶ 57 (“I cant (sic) afford an attorney due to indigence. . . .”). Plaintiff now, for the first time,
submits the instant motion for pro bono counsel. Mot. to Appoint Counsel, Apr. 25, 2023, D.E.
145.
II.

DISCUSSION
It is well settled that the appointment of pro bono counsel in a civil matter is neither a

statutory nor a constitutional right. Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011);
Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). Instead, district courts have broad
discretion to appoint counsel “to represent any person unable to afford counsel” where
appropriate under 28 U.S.C. § 1915(e). Montgomery v. Pinchack, 294 F.3d 492, 498 (3d Cir.
2002) (citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)). The decision to appoint counsel
is a fact sensitive inquiry to be made on a case-by-case basis. See Tabron, 6 F.3d at 157-58.
“[C]ourts should exercise care in appointing counsel because volunteer lawyer time is a precious
commodity. . . .” Parham, 126 F.3d at 458 (citing Tabron, 6 F.3d at 157).

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To determine whether appointment of counsel is warranted, the Court analyzes the
framework as established in Tabron. As a threshold matter, the Court must determine whether
the Plaintiff’s case has “some merit in fact and law.” Tabron, 6 F.3d at 155. If it does, the Court
may then consider the following non-exhaustive 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.
Id. at 155-57; see also Montgomery, 294 F.3d at 499.
There can be no question that Plaintiff’s case has merit sufficient for purposes of the
appointment of counsel analysis. “[C]ivil rights allegations are not meritless unless it appears
beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his or her
claim.” Piserchia v. Bergen Cnty. Police Dept., Civ. No. 12-2520, 2013 WL 4436183, at *2
(D.N.J. Aug. 15, 2013) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Here, Plaintiff’s
excessive force claim as to Defendants Kelly and Valdivia has survived extensive motion
practice. Thus, the Court finds that Plaintiff’s excessive force claim sets forth a cognizable cause
of action for the limited purpose of the Tabron analysis.
Having considered the threshold issue, the Court next turns to the Tabron factors. The
Court finds that on balance, the majority of Tabron factors weigh in favor of appointment of
counsel. The first factor—whether Plaintiff can present his own case—weighs in favor of
appointment. When analyzing this factor, courts typically consider a plaintiff’s “education,
literacy, prior work experience, prior litigation experience, the plaintiff’s ability to understand
English, and the plaintiff’s restraints due to confinement.” Woodham v. Sayre Borough Police
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Dep’t, 191 F. App’x 111, 114 (3d Cir. 2006) (citing Montgomery, 294 F.3d at 501). Courts
should also consider whether a plaintiff has “access to necessary resources like a typewriter,
photocopier, telephone, and computer.” Parham, 126 F.3d at 459. Plaintiff has successfully
litigated the excessive force claims thus far as to Defendants Kelly and Valdivia. However, he is
incarcerated in East Jersey State Prison, and as such, is unable to leave the facility. Pl.’s Br. in
Supp., D.E. 145-1, at 1. He also certifies that although he has some high school education, he is
“confused by procedures cited in filings on paper and have difficulty understanding them,
delaying my ability to respond.” Greene Cert., D.E. 145-4, ¶ 30. Additionally, Plaintiff has
trouble “concentrating on legal issues, and strategy.” Id. ¶¶ 41-42. Moreover, Plaintiff certifies
that he has limited access to necessary resources such as research databases and the law library.
Id. ¶¶ 43-45. Plaintiff is also restricted in the volume of material he can hold in his cell, id. ¶ 46,
which could limit his ability to present his case effectively and efficiently at trial. Taken
together, the Court concludes that absent counsel, Plaintiff’s ability to present his case at trial
would be significantly impaired. Therefore, the first factor weighs in favor of the appointment of
counsel.
Second, the Court considers the complexity of Plaintiff’s claims. On this point, courts
consider “the proof going towards the ultimate issue and the discovery issues involved.”
Parham, 126 F.3d at 459; see also Montgomery, 294 F.3d 502-03 (finding appointment
appropriate when, despite simple legal issues, discovery and presentation difficulties
compromised plaintiff’s case). Furthermore, this factor should be considered in conjunction with
evidence speaking to the plaintiff’s capacity to present his own case. Montgomery, 294 F.3d at
502 (citing Tabron, 6 F.3d at 156). The remaining excessive force claim against Defendants
Valdivia and Kelly is not, by itself, particularly complicated. But Plaintiff is not a lawyer, and

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his lack of training as well as his limited resources and access to trial materials likely would
compromise his ability to present his case effectively at trial. Plaintiff himself certifies that
although he has little difficulty in preparing filings on paper, he would have a difficult time
presenting his case through exhibits, eliciting testimony from supporting witnesses, and crossexamining witnesses called by the defense. Greene Cert., D.E. 145-4, ¶¶ 28-29, 31. Plaintiff
professes that he is unfamiliar with “trial rules, exhibit rules, rules of evidence, and objections,”
and is unable to “present non complex issues in a coherent series of timely proofs to the jury.”
Pl.’s Br. in Supp., D.E. 145-1, at 9; see also Greene Cert., D.E. 145-4, ¶ 34. When considered in
conjunction with Plaintiff’s inability to effectively present his case, the Court finds that the
second factor also weighs in favor of appointing counsel.
Third, the Court must consider the degree of factual investigation and Plaintiff’s ability to
conduct it. This factor neither favors nor disfavors appointment of counsel, because most, if not
all, of the discovery is complete. See Order, Nov. 3, 2022, D.E. 129 (permitting Plaintiff to serve
limited written discovery on Defendants Kelly and Valdivia).
Fourth, it is likely that this matter will turn on credibility determinations. “If it appears
that the case will be ‘solely a swearing contest’ and will rely heavily on credibility
determinations, this should weigh in favor of appointing counsel.” Woodham, 191 F. App’x at
116; Parham, 126 F.3d at 460. This Court’s review of the record suggests that Plaintiff’s case
likely will rely on witness testimony, particularly that of Plaintiff, Kelly and Valdivia. Indeed,
the District Court found, and the Third Circuit agreed, that “the video surveillance evidence does
not clearly depict the events . . . .” Greene, 2022 WL 1024611, at *2. Thus, because the case
likely will turn on credibility determinations, this factor weighs in favor of appointing counsel.

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Fifth, the Court finds that it is conceivable that expert testimony will be required at trial.
Plaintiff points out that the parties may require expert testimony on the training received by the
Defendants. See Pl.’s Br. in Supp., D.E. 145-1, at 9 (“Plaintiff’s need for experts . . . in use of
force training, use of force reports training and practices, video recording analysis, to corroborate
the acts of brutality also warrants appointment of counsel”); Greene Cert., D.E. 145-4, ¶¶ 59-62.
Plaintiff also believes that expert testimony will be necessary on the department’s use of force
policy. It is unclear whether Plaintiff has retained an expert or produced any expert report as of
yet. Nevertheless, this factor weighs in favor of appointment of counsel.
The final factor requires the Court to determine whether Plaintiff can secure and afford
counsel. In his last IFP application, Plaintiff indicated that he earns $45.00 per month in prison.
IFP Application, Sept. 10, 2020, D.E. 114. The District Court found this sufficient to grant him
IFP status and did so on October 23, 2020. Order Granting IFP, Oct. 23, 2020, D.E. 116.
Further, Plaintiff has certified that he “[cannot] afford an attorney due to indigence and made
several attempts to get pro bono counsel, writing letters to 10 civil rights and injury attorneys, NJ
Pro Bono Partnership, NJ Bar Association, Seton Hall Center for Social Justice, ACLU,
NAACP, without positive response.” Greene Cert., D.E. 145-4, ¶ 57. Plaintiff has thus shown
that he could not secure counsel, despite his efforts to do so, and cannot afford counsel.
Therefore, the sixth factor weighs in favor of granting Plaintiff’s motion for pro bono counsel.
III.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion for the appointment of pro bono counsel,

D.E. 145, is granted. An appropriate Order will issue.

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s/ Michael A. Hammer___________
Hon. Michael A. Hammer
United States Magistrate Judge

Dated: July 5, 2023

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