BROWN v. ORTIZ et al

Filing 11

OPINION AND ORDER denying application for Pro Bono Counsel without prejudice. Signed by Judge William J. Martini on 3/3/15. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

KEISHAWN BROWN,

Civ. No. 14-04800 (WJM)

Plaintiff,

v.

OPINION & ORDER

ALFARO ORTIZ, et al.,
Defendants.

Brown is a pro se prisoner who has been granted IFP status in this civil case.
Brown was severely injured in a prison attack by a series of John Doe Defendants.
Brown additionally alleges that guards and wardens were deliberately indifferent
because they watched the attack take place and did not intervene to stop it. Brown
requests pro bono counsel.
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 in civil cases. 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 v. Grace, 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 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
155-57. 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.
In addition, counsel appointment may be warranted when a case requires a
significant degree of factual investigation, extensive discovery requests or
compliance with complex discovery rules. Tabron, 6 F.3d at 155. “[W]hen a case
is likely to turn on credibility determinations, appointment of counsel may be
justified.” Id. Similarly, appointed counsel may be necessary “where the case will
require testimony from expert witnesses.” Id.
“[S]ignificant practical restraints on the district courts’ ability to appoint
counsel” exist. Id. at 157. Those restraints include “the ever-growing number of
prisoner civil rights actions filed each year in federal courts; the lack of funding to
pay for appointed counsel; and the limited supply of competent lawyers who are
willing to undertake such representation without compensation.” Id. (footnote
omitted). Therefore, appointment of counsel is warranted only where “special
circumstances” indicate a likelihood of substantial prejudice to the plaintiff should
the plaintiff proceed without counsel. Smith-Bey v. Petscok, 741 F.2d 22, 26 (3d Cir.
1984). Furthermore, because “volunteer lawyer time is extremely valuable, “courts
“should not request counsel under § 1915(d) indiscriminately.” Tabron, 6 F.3d at
157.
It is still too early to burden counsel with a pro bono appointment. Defendants
have not yet even answered the Complaint. Therefore,

IT IS on this 3rd day of March 2015, hereby

ORDERED that Plaintiff’s request for appointment of pro bono counsel is
denied without prejudice.

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