BROWN v. ORTIZ et al
MEMORANDUM OPINION AND ORDER granting 59 Motion to Appoint Pro Bono. Signed by Judge William J. Martini on 8/24/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 14-cv-4800 (WJM)
OPINION & ORDER
OFFICER D. GREY #2280, SGT. MAJOR
#2255, SHIFT COMMANDER LEAK #2032,
This matter comes before the Court on Plaintiff Keishawn Brown’s motion
for appointment of pro bono counsel under 28 U.S.C. § 1915(e)(1). For the reasons
stated below, the Court will GRANT the motion.
Brown brings civil rights claims pro se pursuant to 42 U.S.C. § 1983, alleging
that prison officers breached their duty to protect him 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 he 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 he suffered
as a result of the officers failure to stop the assault. Two prior applications for pro
bono appointment were denied by the Court. See Jan. 3, 2015 Opinion & Order, ECF
No. 11; June 14 Opinion & Order, ECF No. 33. Brown once again brings an
application for pro bono counsel.
Although no constitutional right to an attorney exists in civil cases, 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). 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
exercising its discretion to appoint counsel, the Court must first assess whether a
given case or defense has merit. Tabron, 6 F.3d. at 155. If the case has merit, the
Court must next 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. Id. 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.
The Court will appoint pro bono counsel. As an initial matter, it appears that
Plaintiff’s claim has “some merit in fact and law” and is not “frivolous or malicious.”
Tabron, 5 F.3d at 155. Moving to the Tabron factors, the Court first notes that
Plaintiff cannot afford to obtain counsel on his own behalf. He has no legal training
and is currently incarcerated, which will make it difficult for him to prepare and
present his case at trial. Parham v. Johnson, 126 F.3d 454, 459 (3d Cir. 1997).
Although he has demonstrated a capacity to communicate with the Court, his efforts
to conduct discovery have been largely thwarted. See id. at 459 (holding that even
where no complex issues of law exist “courts must still look to proof going towards
the ultimate issue and the discovery issues involved.”). Further, this case is likely to
turn on credibility determinations, in that it is largely based on the word of the
Plaintiff against the word of Defendants. See id. at 460; Shadli v. Jeffrey S. Ween &
Assocs., No. 13-cv-802 (ES)(MAH), 2016 WL 111419, at *2 (D.N.J. Jan. 11, 2016).
And although funding for counsel may be in limited supply, that concern is mitigated
where “the administration of  litigation . . . [would] greatly benefit from the
efficient and clarity . . . of an experienced trial attorney familiar with federal
practice.” Role v. Local 3 P.M. & S.E. Union, 08-cv-6011, 2011 WL 52524, at *2
(D.N.J. Jan. 6, 2011).
Today’s decision in no way contradicts the Court’s denial of Plaintiff’s first
and second applications to appoint pro bono counsel. The first application was
denied because it was premature, as Defendants had yet to file an answer to the
original complaint. ECF No. 11, 2. In contrast, Defendants filed an answer to
Plaintiff’s amended complaint three months before Plaintiff filed the instant motion.
See Answer to Amended Complaint, ECF No. 56. The Court denied Plaintiff’s
second motion for pro bono counsel because Plaintiff had successfully obtained
incident reports and conducted factual investigation as to the identify the appropriate
defendants. See ECF 33, 3. However, Plaintiff has since encountered obstacles to
securing Defendants’ compliance with discovery requests; he is no longer in
possession of the aforementioned incident reports as a result of his being transferred
to a new facility, and has been unable to obtain video surveillance that may be crucial
to his case. See ECF Nos. 59, 61. An attorney will be able to resolve any discovery
disputes far more efficiently than Plaintiff himself.
For the above reasons and for good cause shown;
IT IS on this 24th day of August 2017, hereby,
ORDERED that Plaintiff’s application for pro bono counsel is GRANTED.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
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