KING v. GALANO et al

Filing 13

Memorandum Opinion and Order denying application for Pro Bono Counsel. Signed by Judge William J. Martini on 6/9/14. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:14-cv-01691 (WJM)

DAVID KING,
Plaintiff,

MEMORANDUM
OPINION & ORDER

v.
MICHAEL GALANO, et al.,
Defendants.

This matter comes before the Court on pro se Plaintiff David King’s application
for the appointment of pro bono counsel under 28 U.S.C. § 1915(e)(1). For the reasons
stated below, the Court will deny the application at this time.
This is an excessive force case brought under 42 U.S.C. § 1983. Plaintiff is
confined at the Hudson County Correctional Center. Plaintiff alleges that on May 19,
2013, neighbors called the police to complain about Plaintiff causing a disturbance and
possibly possessing a weapon. Defendants Officers Michael Galano and Trident
Villanueva responded to the call and asked Plaintiff to drop the handgun he was holding.
Plaintiff was disoriented and he froze. Plaintiff was then shot 15 times. Plaintiff brought
this incident to the attention of the Hudson County prosecutor, but the prosecutor failed
to act.
On March 17, 2014, Plaintiff filed a Complaint alleging excessive force. On April
21, 2014, Plaintiff was granted in forma pauperis status. The undersigned found that the
Complaint was not subject to sua sponte dismissal against Officers Galano and
Villaneuva or the City of Jersey City.
Section 1915(e)(1) provides that a “court may request an attorney to represent any
person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). This provision covers both
plaintiffs and defendants. See Waller v. Butkovich, 584 F. Supp. 909, 947-48 (D.N.C.
1984). District courts have “broad discretion” to decide whether requesting counsel is
appropriate, and may request counsel sua sponte at any point in the litigation.
Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Tabron v. Grace, 6
F.3d 147, 153 (3d Cir. 1993)). In Tabron, the Third Circuit instructed that, in exercising
its discretion to appoint counsel, district courts must first assess whether a given case or
defense has merit, and then weigh specific factors, including (1) the litigant’s ability to

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present his or her own case; (2) the difficulty of the particular legal issues; (3) the degree
to which factual investigation will be necessary and the ability of the litigant to pursue
that investigation; (4) the litigant’s capacity to retain counsel on his or her own behalf;
(5) the extent to which a case is likely to turn on credibility determinations; and (6)
whether the case will require testimony from expert witnesses. Tabron, 6 F.3d. at 15557. The list is non-exhaustive, and the Court may consider other facts or factors it
determines are important or helpful. Montgomery, 294 F.3d at 499.
The Court finds that Plaintiff’s application for pro bono counsel is premature.
First, Plaintiff has demonstrated an ability to present his case. Plaintiff has filed a
Complaint that has withstood sua sponte dismissal. Second, the legal issues in this case,
while serious, are not complicated. Third, no expert witnesses are called for at this time.
Therefore, mindful of the practical restraints on the Court’s ability to appoint counsel,
this Court finds that it is inappropriate at this time to exercise its discretion to appoint pro
bono counsel.
For the foregoing reasons and for good cause shown;
IT IS on this 9th day of June 2014, hereby,
ORDERED that Plaintiff’s application for pro bono counsel is DENIED
WITHOUT PREJUDICE.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.

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