OJO v. LUONG et al

Filing 9

OPINION. Signed by Judge Jose L. Linares on 4/21/2015. (dmr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

OLUKAYODE DAVID OJO,
Plaintiff,
v.
ANN LUONG, et al.,
Defendants.

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Civil Action No. 14-4347 (JLL)

OPINION

LINARES, District Judge:
Plaintiff, Olukayode David Ojo, filed a complaint against Defendants, Ann Luong, Brian
Ennesser, Michael “Mike” Bickings, Scott Urben, Matthew Nahas, Ray Miller, Anthony
Sardanopoli, Hugo Reibeiro and numerous John Does, on July 7, 2014. (ECF No. 1). On March
11, 2015, this Court granted Plaintiff’s application to proceed in forma pauperis. (ECF No. 8).
At this time, the Court must review the Complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B) and
1915A to determine whether it should be dismissed as frivolous or malicious, for failure to state a
claim upon which relief may be granted, or because it seeks monetary relief from a defendant who
is immune from such relief. Also before the Court is Plaintiff’s application for pro bono counsel
(Attachment 4 to ECF No. 1). For the reasons set out below, this Court will permit Plaintiff’s
Fifth Amendment claims to proceed at this time and dismiss Plaintiff’s remaining claims as time
barred. The court will also dismiss without prejudice the State Trooper Defendants as no claims
against them remain following dismissal of the time barred claims. Finally, Plaintiff’s application
for pro bono counsel is denied.
I. BACKGROUND

The following facts are drawn from the allegations contained in Plaintiff’s complaint.
(ECF No. 1). Plaintiff is a citizen of Nigeria who, prior to his arrest, resided in Irvington New
Jersey. (ECF No. 1 at ¶ 4). Plaintiff, at the time he filed his complaint, was incarcerated in the
Orange County Jail in Goshen, New York. (Id.). Defendants Ann Luong, Brian Ennesser,
Michael Bickings, Scott Urben, Matthew Nahas, and Ray Miller are all FBI agents belonging to
Squad 42 out of the Bureau’s New York office who were involved in Plaintiff’s arrest. (Id. at ¶
5-10). Defendants Anthony Sardanopoli and Hugo Reibeiro are both New Jersey State Troopers
who initiated the traffic stop which led to Plaintiff’s arrest. (Id. at ¶11-12). The remaining John
Does are all also alleged to be New Jersey State Police officers who were involved in the search
of Plaintiff’s vehicle as detailed below. (Id. at ¶13-18).
Plaintiff’s claims arise out of the events which culminated in his arrest, prosecution, and
conviction on conspiracy to commit wire fraud charges. (See United States v. Ojo, No. 13-334
(E.D.N.Y. 2013), Indictment at ECF No. 1, Jury Verdict at ECF No. 50). Plaintiff alleges that,
while at home on July 11, 2011, the FBI agent defendants “illegally” used a tracking device to
monitor and follow him via his cell phone. (ECF No. 1 at ¶19). During that afternoon, Plaintiff
left his home, and while driving a car was pulled over by Defendants Sardanopoli and Reibeiro.
(Id. at ¶20-21). While the troopers were engaged in the traffic stop, six more New Jersey State
Police cars arrived, out of which the John Doe Defendants exited with weapons drawn. (Id.).
While the two original troopers questioned Plaintiff regarding the traffic stop, the other officers
surrounded his vehicle. (Id.). Plaintiff alleges that he was then falsely cited for failure to wear a
seatbelt by Defendants Sardanopoli and Reibeiro. 1 (Id. at 21). The original two troopers then
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Plaintiff doesn’t reveal which trooper actually issued the ticket, only that one of the original
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left the scene, while the remaining armed officers held Plaintiff at the scene of the traffic stop,
detaining him on the roadside while the FBI Agent Defendants arrived on the scene. (Id. at ¶2223). Plaintiff specifically alleges that he was directed to “shut up and . . . sit barely on a very hot
paved road at approximately 3:40 PM in the Summer season with a very high degree temperature.”
(Id. at ¶26). Plaintiff also alleges that the state policemen refused his requests for a lawyer and to
contact his sister via his cell phone to request that she procure a lawyer for Plaintiff. (Id. at ¶22).
Defendants Luong and Ennesser then approached Plaintiff and requested Plaintiff’s
consent to search his vehicle, which Plaintiff refused. (Id. at ¶23). Following his refusal,
Defendants summoned another State Police car, which brought a police dog to the scene. (Id. at
¶24). The dog was then used to search the car, both within and without the vehicle and its trunk.
(Id.). Following the dog search, Defendants again approached Plaintiff and requested his consent
to search the car, which Plaintiff refused, again requesting that he be permitted to acquire counsel.
(Id. at ¶25). Plaintiff was also again informed that he was not to use his cell phone while detained,
including to call his family in attempts to acquire a lawyer. (Id.). Plaintiff also alleges that he
began to request that passers-by obtain a lawyer for him and that in response the state policemen
again pointed their weapons at him and instructed Plaintiff to remain quiet and seated on the
roadside. (Id. at ¶26).
Plaintiff claims that he was thereafter approached by Defendant Ennesser who “coerced”
him into signing a consent to search form. (Id. at ¶28). Specifically, Plaintiff alleges that
Ennesser told him that “this is how we use to do in America, they were just trying to give you a

two “falsely” issued a ticket for a seatbelt violation.
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chance, in America it is give and take, if it is given to you and you refused we will take it back,
and if you cooperate it will be good for you.” (Id.). Plaintiff also alleges that he was “threatened
and coerced” into signing the statement. (Id.).
Following the consent to search form, Plaintiff was directed to empty his pockets and was
patted down by the officers. (Id. at ¶29). The FBI and John Doe Defendants then searched the
vehicle, in which they found four IDs. (Id.). Plaintiff alleges that the FBI defendants then led
him to their van and questioned him without providing him a Miranda warning. (Id.). Plaintiff
alleges that he was then questioned, threatened, and coerced into admitting that he had been sent
the IDs so as to collect money from Western Union. (Id.). Plaintiff alleges that he was told that
he would be turned over to the state troopers if he did not cooperate, but “if you cooperate . . . the
armed troopers will be excused from the scene and [the FBI] will help you.” (Id.). Plaintiff
alleges that he was then transported to various Western Union locations and directed to withdraw
the money, but was unable to do so as no money was available. (Id. at ¶30).
Plaintiff states that he was then taken to the FBI office in New York, where he continued
to be interrogated “in the absence of counsel and without being given certain warnings for more
than eight hours.” (Id. at ¶31). At 11:15 p.m. that night, Plaintiff was presented with another
consent to search form which he was told was a duplicate of the one he’d signed on the road side,
which he apparently signed. (Id. at ¶32). Plaintiff was also provided with a Miranda warning
form which he signed at which point he alleges he “chose the option of being represented by an
attorney.” (Id.). Plaintiff was then searched a final time, and had his belt removed before being
transported to detention. (Id.).
Plaintiff was thereafter indicted for conspiracy to commit wire fraud on August 11, 2011.
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(See United States v. Ojo, No. 11-570 (E.D.N.Y.), Indictment at ECF No. 6). On May 14, 2013,
Plaintiff was charged by way of superseding indictment with conspiracy to commit wire fraud and
conspiracy to commit fraud in connection with identification documents. (See United States v.
Ojo, No. 11-570 (E.D.N.Y.), Superseding Indictment at ECF no. 74). On June 5, 2013, upon
motion by the Government, the indictment was dismissed without prejudice based on a one day
Speedy Trial Act violation. (See United States v. Ojo, No. 11-570 (E.D.N.Y.), Order at ECF No.
82). Plaintiff was thereafter re-indicted on that same day and charged again with conspiracy to
commit wire fraud and conspiracy to commit fraud in connection with identification documents.
(See United States v. Ojo, No. 13-334 (E.D.N.Y. 2013), Indictment at ECF No. 1). Prior to trial,
Plaintiff filed a petition for a writ of habeas corpus which was denied on August 6, 2013. (ECF
No. 1 at ¶36, see Ojo v. United States, No. 13-4153 (E.D.N.Y.)). Plaintiff was thereafter found
guilty on both counts following a jury trial on August 8, 2013. 2 (ECF No. 1 at ¶35; See United
States v. Ojo, No. 13-334 (E.D.N.Y. 2013), Jury verdict at ECF No. 50). Plaintiff filed a direct
appeal of his conviction with the Court of Appeals for the Second Circuit, which has yet to be
decided. (See United States v. Ojo, No. 14-635 (2d Cir.)).
II. DISCUSSION
A. Legal Standard

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Plaintiff also alleges that he was subjected to an “unlawful” suppression hearing during the
original indictment’s pendency and that the “illegally” obtained evidence was used against him
at trial. (ECF No. 1 at ¶34-35). As Plaintiff does not raise any claims as to the suppression
hearing, the Court does not discuss the hearing in detail. The Court does note, however, that the
Eastern District of New York denied this motion in its entirety on the record following a hearing.
(See United States v. Ojo, No. 11-570 (E.D.N.Y.), Minute Entry at ECF No. 42).
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Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 132166 to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B),
seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a
claim with respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district courts
to sua sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant who is immune from such
relief. This action is subject to sua sponte screening for dismissal under 28 U.S.C. §§
1915(e)(2)(B) and 1915A because Plaintiff is a prisoner who has been granted in forma pauperis
status and seeks damages from governmental employees.
According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To survive sua sponte screening for failure to state a claim 3, the complaint must allege
“sufficient factual matter” to show that the claim is facially plausible. Fowler v. UPMS
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Fair Wind Sailing, Inc. v. Dempster,

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“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012)
(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x
230, 232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F.
App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
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764 F.3d 303, 308 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se
pleadings are liberally construed, “pro se litigants still must allege sufficient facts in their
complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013) (citation omitted) (emphasis added).

B. Analysis
Plaintiff asserts that Defendants violated his First, Fourth, Fifth, Eighth, and Fourteenth
Amendment Rights and are thus liable to him under 42 U.S.C. § 1983 and Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). 42 U.S.C. § 1983
provides “private citizens with a means to redress violations of federal law committed by state
individuals.” Woodyard v. Cnty. Of Essex, 514 F. App’x 177, 180 (3d Cir. 2013). To assert a
claim under § 1983, Plaintiff must show that he was deprived of a federal constitutional or statutory
right by a state actor. Id. When evaluating the merits of a § 1983 claim, the Court must identify
the contours of the underlying right Plaintiff claims Defendants violated and determine whether
Plaintiff has properly alleged the violation of such a right at all. Nicini v. Morra, 212 F.3d 798,
806 (3d Cir. 2000). “A Bivens action . . . is the federal equivalent of the § 1983 cause of action
against state actors, [it] will lie where the defendant has violated the plaintiff’s rights under color
of federal law.” Brown v. Philip Morris, Inc., 250 F.3d 789, 800 (3d Cr. 2001). As the confines
of a Bivens action and a claim brought under § 1983 are usually coterminous, the same legal
principles apply. Id.; Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975). Based on the facts
and allegations contained in Plaintiff’s complaint, this Court construes Plaintiff’s complaint as
asserting the following claims: that Defendants violated Plaintiff’s First Amendment right to free
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speech by preventing him from calling his sister and ordering him to stop asking passers-by to call
an attorney for him, that he was illegally searched in violation of the Fourth and Fourteenth 4
Amendments in so much as the FBI tracked his cell phone, that he was subject to illegal search
and seizure during the traffic stop and subsequent searches while detained on the roadside as well
as in so much as he was forced to sit on the hot pavement during the stop; that Plaintiff’s Fifth
Amendment rights to a lawyer and against self-incrimination were violated when Plaintiff was
questioned by FBI agents allegedly without receiving Miranda warnings or counsel after Plaintiff
requested an attorney, and that Plaintiff was subject to an unreasonable seizure in violation of the
Fourth Amendment by the FBI agents and state police in so much as he was allegedly forced to sit
on the hot roadside for a considerable period. 5

1. Timeliness of Plaintiff’s Fourth and First Amendment Claims
Plaintiff filed his civil rights complaint on July 7, 2014. (ECF No. 1). The events about

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This claim involves the Fourteenth Amendment only in so much as it is applied against state
actors.
5

Plaintiff asserts that his counsel and punishment/hot roadside claims would also arise out of the
Sixth and Eighth Amendments respectively. As Plaintiff had not yet reached the onset of
adversarial judicial proceedings, let alone been convicted, neither Amendment’s protections
applied. See Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 892 (3d Cir. 1999) (Sixth
Amendment rights attach only “at or after the initiation of adverar[ial] judicial proceedings”);
Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005) (Eight Amendment protections do not
apply until “after sentence and conviction”). In so much as Plaintiff claims that he was subject
to cruel and unusual punishment when he was forced to sit on the street during the traffic stop
and subsequent searches, he is challenging the reasonableness of a seizure of his person. See
Graham v. Connor, 490 U.S. 386, 394-96 (1989) (The Fourth Amendment provides protection
against physically abusive conduct during an arrest or investigatory stop).
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which Plaintiff complains, however, occurred on July 11, 2011. The statute of limitations for a
civil rights action brought pursuant to either § 1983 or Bivens is taken from the forum state’s
personal injury statute. Hughes v. Knieblher, 341 F. App’x 749, 752 (3d Cir. 2009). New
Jersey’s statute of limitations for personal injury actions is two years. Id. Plaintiff’s claims
would therefore be barred if they accrued more than two years before July 7, 2014. Id. The date
of accrual for a § 1983 or Bivens action occurs when “the plaintiff knows of or has reason to know
of the injury.” Id.; see also Woodyard v. Cnty. Of Essex, 514 F. App’x 177, 184 (3d Cir. 2013).
The Court must therefore evaluate the date of accrual for each of Plaintiff’s claims.
The majority of Plaintiff’s claims are claims regarding the allegedly illegal search and
seizure of Plaintiff’s person, phone, and vehicle. These claims include Plaintiff’s claim that his
phone was illegally searched prior to his stop, that he was illegally stopped, that his car was
repeatedly illegally searched, and that he was seized in physically abusive circumstances. The
date of accrual for claims of an illegal search or seizure (not including claims for false
imprisonment or arrest) occurs when the plaintiff indisputably knew about the alleged faults of the
search or seizure, which generally coincides with the occurrence of the illegal search or seizure.
See Woodson v. Payton, 503 F. App’x 110, 112 (3d Cir. 2012). As Plaintiff pleads that the initial
stop of his vehicle was based on the false statement by the Troopers that he had not been wearing
his seatbelt, he was clearly aware of the fault in the initial seizure at the time he was pulled over
in July of 2011. Even if the Court gives Plaintiff the benefit of the doubt, Plaintiff clearly knew
of the alleged faults in the search and seizure of his person and vehicle when he filed his original
motion to suppress during his criminal case, 6 which occurred on February 27, 2012. (See United
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Plaintiff incorporates by reference both his criminal trial and his suppression motion/hearing in
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States v. Ojo, No. 11-570 (E.D.N.Y.), Motion to Suppress at ECF 34). Likewise, Plaintiff would
certainly have known about the tracing of his phone following the filing of the State’s response to
that motion on April 10, 2012 which clearly discusses the trace. (See United States v. Ojo, No.
11-570 (E.D.N.Y.), Memorandum in Opposition at ECF No. 38). Thus, even if Plaintiff was not
“indisputably aware” of the illegal searches on the date he was stopped (which does not appear to
be the case), Plaintiff’s date of accrual was at the latest April 10, 2012. The statute of limitations
on those claims had thus run by, at the latest, April 10, 2014. Plaintiff’s Fourth Amendment
illegal search and seizure claims are thus time barred and must be dismissed. Woodson, 503 F.
App’x at 112.
Plaintiff also alleges a violation of his First Amendment right to free speech. In the
absence of a continuing violation, the accrual date for a First Amendment freedom of expression
violation is the date on which the violation itself occurred. See O’Connor v. City of Newark, 440
F.3d 125, 126-28 (3d Cir. 2006). The violation Plaintiff alleges occurred on July 11, 2011.
Plaintiff’s allegations of a First Amendment violation are therefore time barred.

Id.

As

Plaintiff’s First and Fourth Amendment claims are time barred, they shall be dismissed as such at
this time.

2. Plaintiff’s Fifth Amendment claims
The final type of claim Plaintiff seeks to bring is a claim that his Miranda rights were
violated when he was questioned without being read his rights and without being provided an
attorney after he repeatedly requested one. The failure of a government agent to provide proper

his complaint.
10

Miranda warnings during custodial interrogation, or to provide a lawyer during interrogation once
one is requested, does not, in and of itself, give rise to a claim under § 1983 or Bivens. Chavez v.
Martinez, 538 U.S. 760, 773 (2003); see Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994)
(“violations of the prophylactic Miranda procedures do not amount to violations of the constitution
itself . . . the ‘right to counsel’ during custodial interrogation recognized in Miranda . . . is merely
a procedural safeguard, and not a substantive right”); see also Renda v. King, 347 F.3d 550, 557
(3d Cir. 2003) (upholding Giuffre). A Miranda claim only becomes actionable under §1983 or
Bivens when a statement elicited in the absence of those warnings is used at a Plaintiff’s criminal
trial. Chavez, 538 U.S. at 773; see also Large v. Cnty. Of Montgomery, 307 F. App’x 606, 607
(3d Cir. 2009). Thus, to state a claim for relief, Plaintiff must allege that the FBI agents not only
violated Miranda, but then introduced the evidence obtained from that violation at trial, thus
violating Plaintiff’s right against self-incrimination. Large, 307 F. App’x at 607; Renda 347 F.3d
at 559.
Here, Plaintiff has alleged that the FBI agents both interrogated him without providing
Miranda warnings, as well as denied him counsel during that interrogation. Plaintiff has also
alleged that the information elicited from him during that interrogation was then used against him
during his criminal trial in August of 2013. 7 As such, Plaintiff has sufficiently pled a Fifth
Amendment violation under §1983, and Plaintiff’s Fifth Amendment claim shall proceed at this

7

Because a Fifth Amendment violation occurs when the statements are used at trial, and not
during the interrogation itself, this claim is not barred by the statute of limitations as the violation
Plaintiff alleges, if one exists, would have occurred in August of 2013, some eleven months
before he filed his complaint. See Large, 307 F. App’x at 608-09.
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time. 8 Large, 307 F. App’x at 607; Renda 347 F.3d at 559. As Plaintiff’s Fifth Amendment
claim is raised only against the FBI Agent Defendants, the State Trooper defendants will be
dismissed without prejudice as no claims against them remain at this time.
A final wrinkle in Plaintiff’s claim as it goes forward, however, arises because Plaintiff has
named the FBI agent Defendants in both their personal and official capacities. A Bivens action
for monetary damages may be brought against a federal agent in his individual capacity only.
Debrew v. Auman, 354 F. App’x 639, 641 (3d Cir. 2009). Such an action may not be filed against
the agent in his official capacity. Id. As such, Plaintiff’s complaint must be dismissed as to the
FBI defendants in their official capacity only. 9

3. Plaintiff’s Request for the Appointment of Pro Bono Counsel
Plaintiff has also submitted an application for the appointment of pro bono counsel.
8

This Court is unable, at this time, address whether this claim would be barred by Heck v.
Humphrey, 512 U.S. 447 (1994). Under the Heck bar, a claim may not be brought under § 1983
where a decision in favor of Plaintiff on that claim would necessarily imply the invalidity of his
conviction. Large, 307 F. App’x at 607-608. As Plaintiff alleges that his statements were used
at trial, Heck may be implicated in this case. See James v. York Cnty. Police Dep’t, 160 F.
App’x 126, 133 (3d Cir. 2005) (finding that a Fifth Amendment claim asserting compelled selfincrimination can imply the invalidity of a plaintiff’s conviction). A Fifth Amendment
violation, however, does not necessarily imply that a plaintiff’s conviction is unlawful where
“other independent evidence sufficient to result in [a plaintiff’s] conviction” was admitted during
trial. Large, 307 F. App’x at 608. As such, this Court cannot determine whether Plaintiff’s
Fifth Amendment claim is barred under the Heck doctrine without first being provided with trial
transcripts which make clear that Plaintiff’s Fifth Amendment claims necessarily implicate the
invalidity of his conviction.
9

Although Plaintiff technically requests injunctive relief as well, the prospective relief Plaintiff
requests is an injunction declaring that the FBI must comply with the Fourth Amendment, which
is already the case, and thus the requested injunction would be redundant and unnecessary.
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Pursuant to 28 U.S.C. § 1915(e)(1), this Court may request that an attorney represent any person
who is unable to afford counsel. The Court has broad discretion to decide whether such a request
is warranted. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002); see also Tabron v.
Grace, 6 F.3d 147, 153 (3d Cir. 1993). In order to merit a request for counsel,
the indigent plaintiff’s case must have some arguable merit in fact
and law. If so, the court should then consider a number of
additional factors including: (1) the plaintiff’s ability to 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 plaintiff to pursue investigation; (4) the plaintiff’s
capacity to retain counsel on his or her 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.
Cuevas v. United States, 422 F. App’x 142, 144-45 (3d Cir. 2011) (citing the factors annunciated
in Tabron, 6 F.3d at 155-57).
Plaintiff requests counsel as he is unable to retain a lawyer, believes that his case is legally
complex, allegedly has a limited grasp of “English and American Accent,” and believes an attorney
will be necessary for discovery purposes. (Document 4 attached to ECF No. 1). Here, the Court
has determined that Plaintiff’s financial situation merits the granting of in forma pauperis status,
and will permit Plaintiff’s claim to proceed as he has pled a facially plausible claim under Bivens
for a violation of his Fifth Amendment rights. The Court also recognizes that credibility may be
an issue in this case as Plaintiff has pled that he did sign a Miranda waiver after his interrogation,
so the question of when the warnings were given and what was said prior to the warnings may be
a question of import.
That said, the Court does not find that a request for counsel is warranted at this time.
Plaintiff has pled a straightforward Fifth Amendment claim, and his complaint suggests that he
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has understands the nature of this claim and would be able to present it effectively. It is unlikely
that significant discovery or expert testimony will be necessary in this case, given that Defendants
will likely supply all of the necessary transcripts and documents as part of their defense. As for
Plaintiff’s claim that he has a limited grasp of English, plaintiff’s articulate complaint and the
documents he has attached thereto appear to bely his suggestion that he cannot understand English
sufficiently to litigate his case. 10 To the extent that Plaintiff’s argument regarding his lack of
understanding applies only to spoken English (which may be the case given how he worded the
claim in his counsel application), such an issue would not become problematic until such time as
a hearing on the record becomes necessary, at which time Plaintiff would be able to reapply for
pro bono counsel. As the Tabron factors do not support a request for pro bono counsel at this
time, this Court will deny Plaintiff’s application at this time.

III. CONCLUSION
For the reasons stated above, the Court will permit Plaintiff’s Fifth Amendment claim
against Defendants Luong, Enneser, Bickings, Urben, Nahas, and Miller in their individual
capacities only to proceed at this time. Plaintiff’s remaining claims are dismissed as time barred,
and Defendants Sardanopoli, Reibeiro, and the John Doe defendants are dismissed from this action

without prejudice. Finally, Plaintiff’s application for pro bono counsel is denied. An appropriate
order follows.

10

Nothing in the complaint or attached documents leads this Court to believe that someone other
than the Plaintiff drafted these documents.
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s/ Jose L. Linares
JOSE L. LINARES
U.S. DISTRICT JUDGE

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