BROWN v. ORTIZ et al

Filing 33

Opinion and Order denying, without prejudice, the application for Pro Bono Counsel filed by KEISHAWN BROWN. Signed by Judge William J. Martini on 6/14/16. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KEISHAWN BROWN,
Plaintiff,

Civ. No. 14-4800 (WJM)

v.
D. GREY, et al.,

OPINION & ORDER

Defendants.
Presently before the Court is Plaintiff Keishawn Brown’s (“Brown”) second
request for appointment of pro bono counsel. This application is decided without
oral argument. Fed. R. Civ. P. 78. For the reasons set forth below, the application
is DENIED without prejudice.
I.

BACKGROUND

Brown brings civil rights claims pursuant to 42 U.S.C. § 1983, alleging that
prison officers breached their duty to protect her from an assault. (See Amended
Compl. (“Am. Compl.”) 2-3, ECF No. 30.) On August 12, 2012, while
incarcerated in Essex County Correctional Facility Unit 4-E-1, approximately
thirty other inmates attacked Brown. (See id.) Brown sought help from the
defendant officers, but they allegedly did not take steps to stop the attack. (See id.
at 2.) As a result of this attack, Brown alleges that she was hospitalized and placed
in a medically induced coma, suffering internal bleeding and a fractured jaw. (Id.
at 4.) Brown brought the instant action seeking to recover damages due to the
injuries she suffered as a result of the officers failure to stop the assault. A prior
application for pro bono appointment was denied by the Court. (See Application
for Pro Bono Counsel “Questions to Be Answered” 3-4, ECF No. 10; see also
Opinion & Order, ECF No. 11.) Brown once again brings an application for pro
bono counsel.
II.

DISCUSSION

Neither the Constitution nor any statutes provide civil litigants with the right
to appointed counsel. See Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir.
1997). However, district courts have “broad discretion” to appoint counsel, if

appropriate, under 28 U.S.C. § 1915(e)(1). Montgomery v. Pinchak, 294 F.3d 492,
498 (3d Cir. 2002) (citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)). In
exercising such discretion and determining the appropriateness of appointing
counsel, the Third Circuit has instructed that 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 such 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. As
to the factual investigation factor, appointment of counsel may be warranted when
a case requires a significant degree of factual investigation, extensive discovery
requests, expert testimony, 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.”) The Tabron 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.
Nonetheless, “significant practical restraints on the district courts’ ability to
appoint counsel” exist. Tabron, 6 F.3d at 157 (noting restraints such as “the evergrowing 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.”) Therefore, appointment of counsel is warranted only where
“special circumstances” indicate a likelihood of substantial prejudice to the
plaintiff should he or she 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 . . . indiscriminately.” Tabron, 6
F.3d at 157.
The Court assumes that Brown’s claims have merit for the purpose of her
instant application. However, in light of the criteria put forth by the Third Circuit
and the practical restraints on the appointment of counsel, the Court once again
concludes that the appointment of pro bono counsel is not warranted at this stage.
The legal and factual issues in this case have not changed since the Court’s
previous denial of pro bono counsel. (See Opinion & Order, ECF No. 11.)
Although, Brown’s papers lack the force and clarity one expects from an attorney,
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this does not mean that her request for counsel should be granted. See, e.g., Terrell
v. Hendricks, No. 11–00832, 2012 WL 2341418, at *3 (D.N.J. June 15, 2012)
(citing Gordon v. Gonzalez, 232 F. App’x 153, 157 (3d Cir. 2007)). Brown has
demonstrated an ability to articulate the legal relief she seeks. While Brown cites a
lack of access to the law library as an obstacle in furthering her claim, courts
typically do not appoint counsel despite a plaintiff’s lack of access to a prison law
library. See id. at *2 (finding Plaintiff does not have right to pro bono counsel
absent a clear lack of access to prison law library materials that is uniquely limited
as compared to access available to other inmates). Consequently, the legal issues
underlying Brown’s case are not complex, weighing against the appointment of
counsel. Case law regarding actions arising under § 1983 is well developed and
courts usually do not appoint pro bono counsel in such instances. See id. at *3.
Moving to the discovery factors, courts evaluate the “extent to which
prisoners . . . may face problems in pursuing their claims.” Tabron, 6 F.3d at 156.
Brown has successfully obtained incident reports and conducted factual
investigation as to the identity of the “John Doe” defendants from her prison cell.
(See Motion for Pro Bono Counsel 4, ECF No. 25.); see Wolfe v. Kaminski, No.
CIV.A. 14-1956 ES, 2015 WL 4126562, at *3 (D.N.J. July 8, 2015) (“Courts often
deny applications for pro bono counsel where plaintiffs do not demonstrate that it
will be difficult to obtain relevant records”). Though Brown initially requested
help to determine the identities of the officers, she was subsequently able to
accomplish the task through her own investigation. (See ECF No. 14; Motion for
Pro Bono Counsel “Questions to Be Answered” 3, ECF No. 25; Am. Compl. 1-3,
ECF No. 30.) Through her inquires and responses, Brown has shown an
understanding of the actions she must take to further her claims. (See Motion for
Pro Bono Counsel “Questions to Be Answered” 3, ECF No. 25 (“I need someone
to pursue a[n] investigation that I cannot do. Like trying to get my incident reports
that took almost four years to get.”)) In her letters to the Court, Brown has
inquired about service of her complaint, filing deadlines, and obtaining incident
reports. (See ECF Nos. 12, 14, 16, 17, 18, 21, 23, 26, 31, 32.) Accordingly, the
discovery that Brown has set forth in her application appears to be evidence she
can obtain through her own efforts, and—based on her prior submissions in this
case—the Court does not find that Brown has demonstrated an inability to conduct
factual discovery regarding her allegations.
Lastly, addressing the remaining Tabron factors, it is too soon to determine
whether Brown’s case will turn on credibility determinations or necessitate expert
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testimony. See Maclin v. Freake, 650 F.2d 885, 888 (7th Cir. 1981) (“[C]ounsel
may be warranted where the only evidence presented to the factfinder consists of
conflicting testimony”) (cited with approval in Tabron, 6 F.3d at 156). Therefore,
these factors weigh neither for nor against appointment.
Accordingly, assessing the Tabron factors, the Court will deny Brown’s
application for pro bono counsel. However, such denial is done without prejudice
to Plaintiff’s right to renew her application following the exchange of initial
disclosures under Federal Rule of Civil Procedure 26 and written discovery.
Thus, for the above reasons and for good cause shown;
IT IS on this 14th day of June 2016, 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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