THOMAS v. ELIZABETH POLICE DEPARTMENT et al
Filing
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OPINION AND ORDER denying 18 Motion to Appoint Pro Bono Counsel WITHOUT PREJUDICE. Signed by Magistrate Judge James B. Clark on 11/7/2016. (ld, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RYAN THOMAS,
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Plaintiff,
v.
ELIZABETH POLICE DEPARTMENT
et al,
Defendants.
Civil Action No. 15-8375 (KM)
OPINION AND ORDER
THIS MATTER comes before the Court on a Motion by pro se Plaintiff Ryan Thomas
for the appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e). [Dkt. No. 18].
Plaintiff’s Motion is unopposed. For the reasons set forth below, Plaintiff’s Motion for the
appointment of pro bono counsel is DENIED.
Plaintiff filed his Complaint on December 1, 2015, alleging claims that he was subject to
“a pattern, custom, and practice of harassment, false arrest, and assault” by certain police officers
and the City of Elizabeth Police Department. [Dkt. No. 1]. Specifically, Plaintiff claims that he
apprehended and assaulted by certain police officers, and that the City of Elizabeth Police
Department failed to properly supervise and train its police officers. [Dkt. No. 1]. On December
1, 2015, Plaintiff filed an application to proceed in forma pauperis, which the Court granted on
December 7, 2015. [Dkt. No. 2]. Plaintiff filed the present Motion for Pro Bono Counsel on July
22, 2016. [Dkt. No. 18].
Plaintiff seeks the appointment of counsel under 28 U.S.C. § 1915(e), which provides
that “[t]he court may request an attorney to represent any person unable to afford counsel.” The
appointment of counsel is a privilege, not a statutory or constitutional right. Brightwell v.
Lehman, 637 F.3d 187, 192 (3d Cir. 2011). The decision to appoint pro bono counsel involves a
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two-step analysis. First, a court must determine, as a threshold matter, whether a plaintiff’s claim
has “some merit in fact and law.” Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). If a court
finds that the action arguably has merit, it should then consider the following factors:
(1) the plaintiff’s ability to present his or her own case;
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be necessary and the ability of
the plaintiff to pursue such investigations;
(4) the amount a case is likely to turn on credibility determinations;
(5) whether the case will require the testimony of expert witnesses;
(6) whether the plaintiff can attain and afford counsel on his own behalf.
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997) (citing Tabron, 6 F.3d at 155-56, 157 n.5).
This list is not exhaustive, but rather provides guideposts for the Court. Montgomery v. Pinchak,
294 F.3d 492, 499 (3d Cir. 2002) (additional citations omitted). A court’s decision to appoint
counsel “must be made on a case-by-case basis.” Tabron, 6 F.3d at 157-58. Additionally, the
Third Circuit has stated that “courts should exercise care in appointing counsel because volunteer
lawyer time is a precious commodity and should not be wasted on frivolous cases.” Montgomery,
294 F.3d 499 (citing Parham, 126 F.3d at 458).
Presently, as an initial matter and regardless of whether or not Plaintiff’s claims have
merit, the factual and legal issues “have not been tested or developed by the general course of
litigation, making [a number of factors] of Parham’s test particularly difficult to evaluate.” See
Chatterjee v. Philadelphia Federation of Teachers, 2000 WL 1022979 at *1 (E.D.Pa. July 18,
2000) (stating that unlike Parham, which concerned a directed verdict ruling, and Tabron, which
involved summary judgment adjudication, plaintiff’s claims asserted in the complaint and
motions “have barely been articulated” and have a distinctive procedural posture). With respect
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to the Tabron factors, Plaintiff has not demonstrated at this stage of the proceeding that pro bono
counsel is warranted. Despite Plaintiff’s claims that he is receiving psychiatric care [see Dkt. No.
18], his filings with the Court thus far reflect literacy and the ability to reference relevant legal
authority. For example, without the assistance of counsel, Plaintiff has filed a Complaint, an
application for in forma pauperis status, a request for default judgement, and the present motion
for the appointment of pro bono counsel. These filing themselves demonstrate that Plaintiff is
able to present his case. The legal issues presented are not complex, and at this stage the degree
to which factual investigations will be necessary, the extent to which the case is likely to turn on
credibility determinations, and whether Plaintiff will require expert witnesses is unclear.
The Court acknowledges that Plaintiff is of limited financial means and unable to afford his own
counsel. While the sixth Tabron factor weights slightly in Plaintiff’s favor, this fact alone is not
enough to justify the appointment of counsel. See Christy v. Robinson, 216 F. Supp. 2d 398, 410
(D.N.J. 2002) (denying application for pro bono counsel where indigency was the only one of the
six factors . . . weigh[ing] in favor of appointment of counsel).
The Court recognizes that issues may arise throughout the course of this litigation which
may raise a question as to Plaintiff’s need for counsel. The Court will monitor the considerations
raised by Plaintiff’s Motion throughout case management and, as the case progresses, may
consider a renewed motion for the appointment of counsel. However, at this stage of the
litigation, the Court finds that the Tabron factors weight against appointment. In the event that
Plaintiff renews his application for pro bono counsel in the future, the Court instructs Plaintiff to
address the Tabron factors set forth above.
The Court having considered this matter pursuant to Fed. R. Civ. P. 78, and for good
cause shown;
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IT IS on this 7th day of November, 2016,
ORDERED that Plaintiff’s Motion for the appointment of pro bono counsel
[Dkt. No. 18] is DENIED WITHOUT PREJUDICE.
s/ James B. Clark, III
JAMES B. CLARK, III
United States Magistrate Judge
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