ABULKHAIR v. UNITED STATES POSTAL SERVICE et al

Filing 9

Letter Opinion/Order denying application for Pro Bono Counsel for ASSEM A. ABULKHAIR. Signed by Magistrate Judge Michael A. Hammer on 4/21/14. (DD, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Chambers of

Martin Luther King Jr, Federal Bldg.
& U.S. Courthouse
50 Walnut Street, Room
Newark, NJ 07102
[phone]

Michael A. Hammer
United States Magistrate Judge

April 21, 2014

LETTER OPINION & ORDER
Assem A. Abulkhair
PO Box 2751
Clifton, NJ 07015
RE: Abulkhair v. United States Postal Service, et al.
Civil Action No. 13-7796 (KM)

Dear Litigants:
Presently before the Court is Plaintiff’s December 17, 2013 application for pro bono
counsel under 28 U.S.C. § 1915(e)(1). For the reasons set forth below, Plaintiff’s request is
denied.
Background
On December 23, 2013, Plaintiff filed a complaint against the United States Postal
Service and the United States of America (collectively “Defendants”). Compl. Dec. 23, 2013,
ECF No. 1. Plaintiff contends that beginning in early 2002 his incoming and outgoing mail was
tampered with by Defendants because of his religion and ethnicity, as he is a Moslem man of
Middle Eastern descent. Compl. ¶ 18, ECF No. 1. Specifically, Plaintiff asserts claims for
invasion of privacy, negligence, negligent supervision, negligence per se, intentional infliction of
emotional distress, and negligent infliction of emotional distress. See Compl., ECF No.1.
Plaintiff filed an application to proceed in forma pauperis on December 23, 2013, which is still
pending. See IFP Appl. Dec. 23, 2013, ECF No. 1-1. On the same date, Plaintiff filed this
application for appointment of pro bono counsel. Appl. for Pro Bono Counsel, Dec. 23, 2013,
ECF No. 2. On April 14, 2014, the Court granted Plaintiff’s application to proceed in forma
pauperis. ECF No. 7.
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). District courts,
however, have broad discretion to determine whether appointment of counsel is 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)). 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).
In the Third Circuit, the Court considers the framework established in Tabron v. Grace.
Montgomery, 294 F.3d at 498–99. Under the Tabron framework, the Court must first assess
“whether the claimant’s case has some arguable merit in fact and law.” Montgomery, 294 F.3d
at 499 (citing Tabron 6 F.3d at 155.) 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.
Parham, 126 F.3d at 457–58 (citing Tabron, 6 F.3d at 155–56, 157 n.5). This list is not
exhaustive, but provides guideposts for the Court. Montgomery, 294 F.3d at 499 (citing Parham,
126 F.3d at 457). A court’s decision to appoint counsel “must be made on a case-by-case basis.”
Tabron, 6 F3d at 157–58. Also, the Court of Appeals of the Third Circuit has stated 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
(Parham, 126 F.3d at 458.)
(1) Ability to Present the Case
When the Court is analyzing the plaintiff’s ability to present his or her own case, it will
look to factors such as the plaintiff’s “education, literacy, prior work experience, and prior
litigation experience.” Tabron, 6 F.3d at 156; Spruill v. Bendl, Civ. No. 06-4827, 2007 WL
1231791 at *3 (D.N.J. 2007) (stating that where a plaintiff’s complaint is difficult to understand
due to a lack of education and/or literacy, this factor is weighed toward appointment of counsel).
That a plaintiff has had prior experience with litigation and the legal system in general weighs
against appointment of counsel because it suggests the plaintiff’s familiarity with the process and
with what he should be doing in furtherance of his claim. See Gordon v. Gonzalez, 232 Fed.
Appx. 153, 157 (3d Cir. 2007) (“The numerous pro se filings in this case alone evince [the
plaintiff’s] familiarity with the legal system,” which weighs against appointing counsel); Burns
v. Taylor, Civ. No. 08-4234, 2008 U.S. Dist. LEXIS 83809, at *3 (D.N.J. 2008) (denying
appointment of pro bono counsel and noting plaintiff’s ability to present “a coherent complaint
asserting various points of law, and the instant motion for appointment of counsel”); Rhett v.
Fireman’s Ins. Co., Civ. No. 09-2727 (D.N.J. 2009) (Shwartz) (the fact that plaintiff had been a
plaintiff in numerous lawsuits weighed against appointment of pro bono counsel). Under this

factor, the Court will also consider the plaintiff’s “access to necessary resources like a
typewriter, photocopier, telephone, and computer,” Parham, 126 F.3d at 459, because a lack of
access to these devices may prevent a plaintiff from effectively representing himself. Similarly,
the Court will consider whether a plaintiff is incarcerated during the lawsuit, which may hinder
his ability to present his case. Tabron, 6 F.3d at 156; Montgomery v. Pinchak, 294 F.3d 492, 502
(3d Cir. 2002) (noting that plaintiff’s confinement prevented him from deposing defendants
which led to other obstacles during the discovery process).
Here, the Plaintiff has not indicated in his application his inability to present an effective
case. Rather, the only concern listed is that an attorney is needed for discovery. See Appl. for Pro
Bono Counsel, Dec. 23, 2013, ECF No. 2. However, every case in the federal court system will
require discovery by the parties. Therefore, simply stating that a lawyer is needed for discovery
is insufficient to warrant a finding that the Plaintiff is unable to present his or her own case.
Plaintiff indicates that he has had 16 years of education. See IFP Appl. Dec. 23, 2013, ECF No.
1-1. Plaintiff communicates clearly and filed “a coherent complaint asserting various points of
law,” which cuts against appointment of counsel. Burns, Civ. No. 08-4234, 2008 U.S. Dist.
LEXIS 83809, at *3. Thus, because Plaintiff has not provided any indication as to why he would
be incapable of presenting his own case, this factor weighs in favor of not appointing pro bono
counsel.
(2) The Complexity of the Legal Issues
In situations in which a plaintiff is asserting a legally complex claim or one in which the
law is not clear, “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 (internal quotation
marks omitted). Additionally, in early stages of the litigation, some courts will determine that
appointment of counsel is not yet appropriate because the legal theories have not yet been
elicited through the litigation process, and it is too early to determine if the legal issues will be
complex enough to warrant appointment of counsel. See Burns at *3.
Here, Plaintiff provides no explanation in his application as to why his claims are so
complex as to warrant the need for appointment of pro bono counsel. Moreover, the litigation is
so nascent that it is unclear at this stage whether the proceedings will become complex enough to
warrant the appointment of counsel. Thus, this factor similarly weighs against the Plaintiff.
(3) The Degree to Which Factual Investigation Will Be Necessary
Under this factor, courts will consider the plaintiff’s ability to gather facts that will be
necessary to support his claim. Montgomery, 294 F.3d at 503. This analysis becomes especially
relevant in cases where the plaintiff is incarcerated and is necessarily limited in the investigation
he can conduct; however, the mere fact that plaintiff is incarcerated does not necessarily require
the appointment of counsel. See Clinton at *11 (where discovery was complete and plaintiff did
not express any particular discovery challenges, appointment of counsel was not appropriate);
Al-Wahid Ali v. DOC, Civ. No. 08-2425, 2008 U.S. Dist. LEXIS 74975, at *10 (D.N.J. 2008)
(stating that “[e]ven though plaintiff is imprisoned, he nevertheless has access to a legal library
and the ability to obtain discovery needed to pursue his claim” which weighed against
appointment of counsel). Additionally, under this factor the court will assess any resistance the

plaintiff receives from the defendant during the discovery process. See Graham at *3 (granting
appointment of pro bono counsel when claim was made against parties from a prison);
Montgomery, 294 F.3d at 503 (factor weighed in favor of appointment of counsel because
plaintiff “encountered significant resistance from Defendants in responding to his pro se
discovery motions”). In analyzing this factor, the court will also consider whether the case will
require an extensive discovery period that may require the plaintiff to apply complex discovery
rules. Tabron, 6 F.3d at 156. Other cases, such as medical malpractice cases, may require a
plaintiff to piece together complex medical records and facts, which supports an appointment of
counsel. Parham, 126 F.3d at 460.
Here, Plaintiff provides no information in his application as to why he would be unable to
conduct factual discovery on his own. Plaintiff is not incarcerated, he has knowledge of his
claims, and there is no indication that discovery will be unduly burdensome or require Plaintiff to
work with complex discovery rules. This factor weighs against appointment of counsel.
(4) Whether a Case Will Turn on Credibility Determinations
The court in Tabron noted that when a case requires the factfinder to make credibility
determinations, “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.” Tabron at 156
(internal quotation marks omitted). The Third Circuit has stated that because most cases require
at least some credibility determination, in analyzing this factor, the court should focus on
“whether the case was solely a swearing contest.” Parham at 460. Such a “swearing contest”
occurs when the resolution of the case “may well depend on nothing more than whom the finder
of fact believes.” Wassell v. Youkin et al., Civ. No. 07-326, 2008 U.S. Dist. LEXIS 1820 at *14
(W.D. Pa. 2008). If the case cannot be so described, this factor would weigh against
appointment of counsel. See Montgomery at 505. Similarly, in cases where other important
evidence would be required in addition to a credibility determination, this factor weighs less in
favor of appointing counsel. See Clinton at *11 (emphasizing that this factor analyzes whether
the case will be solely a swearing contest); see also Montgomery at 505.
Here, it is too early to determine whether the case will result in a “swearing contest.”
Parham at 460. As the court in Lozada v. Casale explained, when “no defendant has entered an
appearance, let alone offered a defense, . . . it is too early to conclude that th[e] case will be
‘solely’ a swearing contest”. CIV.A. 13-2090, 2013 WL 6635846 (D.N.J. Dec. 16, 2013). Here
too, Defendants have not entered an appearance or asserted a defense. Thus, it is too early to
ascertain whether the case will turn on a credibility determination. Therefore, this factor also
weighs against appointment of pro bono counsel.
(5) Expert Witnesses
When expert witnesses are required in a case, especially in cases of medical injury,
appointment of counsel may be appropriate. See Parham at 460 (“A medical malpractice case
involves complex facts and medical records that even most lawyers struggle to comprehend.
Hence, most of these cases require expert testimony.”). See also Montgomery at 504-05
(finding that where a plaintiff lacked medical records to prove his injury and needed to rely on

experts to explain the seriousness of his injury, this factor weighed in favor of appointing
counsel). However, expert witnesses are not required in all medical circumstances, and in
situations where expert witnesses are not essential to a plaintiff’s case, appointment of counsel
becomes less appropriate. See Clinton at *12 (stating that where plaintiff’s injuries would be
“apparent to a lay person” appointment of counsel was not appropriate); Montgomery at 504
(“Heart disease and HIV, unlike, for example, broken legs or bullet wounds, do not clearly
manifest themselves in ways that are obvious and ascertainable to a lay person.”).
Plaintiff has offered no indication that expert testimony will be required. Therefore, this
factor also weighs against appointing counsel.
(6) Whether Plaintiff Can Attain His Own Counsel
When determining whether a plaintiff is able to attain his own attorney, a court will
assess whether or not the plaintiff is able to afford an attorney, as well as whether the plaintiff
has made any effort to obtain an attorney himself before seeking the court’s assistance. Tabron
at 157 n.5 (noting that when a plaintiff was able to afford counsel but made no effort to find
counsel himself, the court should not appoint counsel on his behalf); Thompson v. Union County
Div. of Soc. Serv., Civ. No. 07-4928, 2008 U.S. Dist. LEXIS 62077, at *7 (D.N.J. 2008) (“Pro
bono counsel is an extremely limited resource and the Court is reluctant to appoint counsel to an
individual who has not demonstrated an effort to acquire his own representation.”). A court will
also consider whether the plaintiff has successfully made an application to proceed in forma
pauperis, because this lends credence to the claim that the plaintiff is unable to afford his own
counsel. See Montgomery at 505. However, the fact that a plaintiff cannot afford his own
attorney does not by itself require a court to appoint counsel; if a plaintiff is indigent but the
other Tabron factors are not met, counsel should not be appointed. See Clinton at *12-13.
Here, Plaintiff has applied to proceed in forma pauperis, which suggests that Plaintiff is
unable to afford his own attorney. However, as the court in Clinton noted, this factor alone, if the
other Tabron factors are not met, will not be enough to warrant appointing pro bono counsel.
Clinton at *12-13. Therefore, while this factor is met, appointment of pro bono counsel is still
not appropriate.
CONCLUSION
For the foregoing reasons, the Court denies plaintiff’s application for the appointment of
pro bono counsel.

/s Michael A. Hammer___________
United States Magistrate Judge

Dated: April 21, 2014