HOLMES v. CHRISTIE et al

Filing 55

OPINION. Signed by Magistrate Judge Michael A. Hammer on 3/29/2022. (jd) Modified on 3/29/2022 (jd).

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________

:
WILFRED LEE HOLMES,
:
:
Plaintiff,
:
:
v.
:
:
CHRIS CHRISTIE, etc., et al.,
:
:
Defendants.
:
____________________________________:

Civil Action No. 16-1434 (ES)(MAH)
OPINION

Presently before the Court is Plaintiff’s motion for the appointment of pro bono counsel
pursuant to 28 U.S.C § 1915(e)(1). See Motion to Appoint Counsel, Jan. 24, 2022, D.E. 52.
Pursuant to Federal Rule of Civil Procedure 78, the Undersigned has considered this matter on the
papers. For the reasons set forth below, Plaintiff’s motion is granted.
I.

BACKGROUND 1
On March 14, 2016, Plaintiff filed a pro se Complaint pursuant to 42 U.S.C. § 1983,

alleging twelve causes of action against Defendants former Governor Chris Christie, David W.
Thomas, James Plousis, Samuel J. Plumeri, Stuart Rabner, Carmen Messano, Margaret M.
Hayden, and John Tassini. Compl., D.E. 1. On March 15, 2017, the Court filed a Memorandum
& Order granting Plaintiff in forma pauperis status pursuant to 28 U.S.C. § 1915(a) and
permitting only Plaintiff’s ex post facto and due process claims to proceed against three
Defendants, David W. Thomas, James Plousis, and Samuel J. Plumeri. Memorandum & Order,
D.E. 10.

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The procedural history of this matter is extensive and complex. Because this Court writes
predominantly for the parties, the Background will be abbreviated, elaborating only where
necessary for resolution of the instant motion.

Plaintiff, who had been convicted on charges of murder and manslaughter while on parole
in the early 1970s and sentenced to life in prison with the possibility of parole, became eligible for
parole in 2001. Holmes v. Christie, 14 F.4th 250, 256 (3rd Cir. 2021). The New Jersey State
Parole Board denied Plaintiff release at that time. Id. In 2012, after a subsequent parole hearing,
the Parole Board again denied Plaintiff parole. Id. Plaintiff claims that the Parole Board
improperly denied him parole in 2012 by applying the 1997 Amendments 2 to the Parole Act in
violation of the ex post facto clause. Compl., ¶¶ 58, 60 (f). Plaintiff also alleges that the Parole
Board’s approach violated the due process clause. Id., ¶¶ 60 (c), (i).
On June 22, 2017, Defendants David W. Thomas, James Plousis, and Samuel J. Plumeri
filed a motion to dismiss the Complaint, D.E. 18, which the District Court granted in an Opinion
and Order on December 12, 2018. Opinion & Order, D.E. 43, 44. Plaintiff appealed. D.E. 45. The
Third Circuit affirmed dismissal of the Plaintiff’s due process claim, but vacated the dismissal of
Plaintiff’s ex post facto claim, and remanded the matter “for discovery to determine whether the
retroactive application of the 1997 Amendments to Holmes ‘create[d] a significant risk of
prolonging [his] incarceration.” Holmes, 14 F.4th at 268 (quoting Garner v. Jones, 529 U.S. 244,

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The 1997 Amendments that are relevant to Plaintiff’s ex post facto claim, and thus, this Opinion
include:
• The All-Information Provision: Consistent with the Commission’s recommendation,
the Amendments eliminated the prohibition against reviewing old information. Compare
N.J. Stat. Ann. § 30:4-123.56(c) (2011), with N.J. Stat. Ann. § 30:4-123.56(c) (1996). Under
the new regime, the Board enjoys free rein to revisit an inmate’s criminal history during successive
hearings.
• The Risk-Assessment Requirement: The Amendments also instructed the Board to prepare an
“objective risk assessment” before every parole hearing, including successive hearings.
N.J. Stat. Ann. § 30:4-123.52(e) (2001). This assessment must incorporate old information
—including an inmate’s “educational and employment history” and “family and marital history”
—along with any other “static and dynamic factors which may assist the [B]oard.” Id.

Holmes, 14 F.4th at 256.
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251 (2000)). Once the case was remanded and reopened, Plaintiff filed the instant motion for the
appointment of pro bono counsel. Mot. for Appt. of Counsel, January 24, 2022, D.E. 52.
II.

DISCUSSION
In civil cases, neither the Constitution nor any statute gives civil litigants the right to

appointed counsel. See Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). District courts,
however, have broad discretion to determine whether appointment of counsel is appropriate under
28 U.S.C. § 1915(e). See Montgomery v. Pinchack, 294 F.3d 492, 498 (3d Cir. 2002) (citing
Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)). Appointment of counsel may be made at any
point in the litigation, including sua sponte by the Court. Montgomery, 294 F.3d at 498.
In the Third Circuit, the Court considers the framework established in Tabron v. Grace.
Id. at 498–99. Under the Tabron framework, the Court must first assess “whether the claimant’s
case has some arguable merit in fact and law.” Id. at 499 (citing Tabron, 6 F.3d at 155.) If the
applicant’s claim has some merit, the Court considers 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 investigation;
(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, 126 F.3d at 457–58 (citing Tabron, 6 F.3d at 155–56, 157 n.5). This list is not exhaustive,
but provides a guidepost for the Court. Montgomery, 294 F.3d at 499 (citing Parham, 126 F.3d at
457). A court’s decision to appoint counsel “must be made on a case-by-case basis.” Tabron, 6
F.3d at 157–58. In addition, the United States Court of Appeals for 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 at 499.

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As a threshold matter, Plaintiff’s case has merit sufficient for purposes of the Tabron
analysis. A pro se plaintiff’s complaint is held to a less stringent standard. Erickson v. Pardus,
551 U.S. 89, 93-94 (2007). Furthermore, “civil rights allegations are not meritless unless it
appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his or
her claim.” Piserchia v. Bergen County Police Dept., No. 12-2520, 2013 WL 4436183, at *2
(D.N.J. Aug. 15, 2013) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Here, while it
remains to be seen whether Plaintiff can prove his ex post facto claim, the Third Circuit reversed
the District Court’s dismissal with respect to Plaintiff’s ex post facto claim, remanding the case
for discovery. Holmes, 14 F.4th at 268. The Third Circuit determined that Plaintiff had stated a
plausible claim that the Parole Board implemented the all-information provision of the 1997
Amendments in a way that created a significant risk of prolonging his term of imprisonment in
violation of the ex post facto clause. Id. at 263. Thus, for the limited purpose of the Tabron
analysis, the Court finds that Plaintiff’s ex post facto claim sets forth a cognizable cause of
action.
Turning to consideration of the Tabron factors, the Court finds that the majority
demonstrate that appointment of counsel is warranted at this time. First, the Court must consider
whether Plaintiff can present his own case. This factor weighs decidedly in Plaintiff’s favor.
When considering this factor, courts typically consider a plaintiff’s “education, literacy, prior
work experience, and prior litigation experience.” Tabron, 6 F.3d at 156. If a plaintiff is
incarcerated, courts will also consider any constraints that exist because of that confinement. Id.
Here, Plaintiff certifies that “the entirety of the pleadings, briefs, appendices, motions and
requests for discovery filed in this action have been prepared by another prisoner” and if there is
an evidentiary hearing, he will not be able to adequately represent himself. Mot. for Appt. of

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Counsel, Certification of Wilfred Lee Holmes, D.E. 52-2, ¶¶ 3, 4. Given that Plaintiff is
incarcerated and has had another prisoner helping him with this litigation, and the fact that the
Court cannot foreclose the possibility that there may be the need for an evidentiary hearing, the
Court finds that Plaintiff will not be able to present his case on his own effectively. Thus,
Plaintiff’s inability to effectively represent himself weighs in favor of the appointment of
counsel.
Second, the Court must also consider the complexity of the claims. Complexity supports
appointment “where the law is not clear, [as] it will often serve the ends of justice to have both
sides of a difficult legal issue presented by those trained in legal analysis.” Tabron, 6 F.3d at
156 (quoting Macklin v. Freake, 650 F.2d 885, 889 (7th Cir. 1981)); accord Montgomery, 294
F.3d at 502-03. Courts also consider “the proof going towards the ultimate issue and the
discovery issues involved.” Parham, 126 F.3d at 459; see also Montgomery, 294 F.3d 502-03
(finding appointment appropriate when, despite simple legal issues, discovery and presentation
difficulties compromised plaintiff’s case). Furthermore, this factor should be considered in
conjunction with evidence speaking to the plaintiff’s capacity to present his own case.
Montgomery, 294 F.3d at 502 (citing Tabron, 6 F.3d at 156). The complexity of Plaintiff’s ex
post facto claim weighs in favor of the appointment of counsel because establishing the claim
will require an understanding of, inter alia, the Ex Post Facto Clause; New Jersey’s complicated
parole system; and the 1997 Amendments to the Parole Act, particularly, the all-inclusion
provision and risk-assessment requirement of those Amendments. The legal issues that will arise
in this matter may be quite nuanced and their significance may escape someone with little ability
to present his own case. Moreover, as addressed more fully in the next factor, discovery will be

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complex. Taken together with Plaintiff’s inability to present his own case, the complexity of
Plaintiff’s claim weighs in favor of appointing Plaintiff counsel.
Third, the Court must next consider the degree of factual investigation necessary and
Plaintiff’s ability to conduct it.

This factor weighs heavily in favor of granting Plaintiff

appointment of pro bono counsel in light of the Third Circuit’s decision indicating that Plaintiff’s
claim “is a ‘fact-intensive inquiry,’” and that the Court “may wish to sequence” discovery.
Holmes, 14 F.4th at 260, 263. Specifically, the Third Circuit suggested the Court might sequence
discovery “as to the practical effect of the pre-1997 rules, the Board’s consideration of past conduct
in Holmes’s case, and whether their consideration created a significant risk of prolonging his
imprisonment relative to the old rules.” Id. at 263. Discovery in this action likely will be complex,
voluminous, and protracted. It is clear that Plaintiff lacks the ability to conduct an adequate factual
investigation without the assistance of counsel. Thus, the third Tabron factor weighs in favor of
the appointment of counsel.
Fourth, it is premature for the Court to conclude that this case will turn on credibility
determinations. Because “it is difficult to imagine” a case where credibility is not important, the
United States Court of Appeals for the Third Circuit has specified that “when considering this
factor, courts should determine whether the case [is] solely a swearing contest.” Parham, 126
F.3d at 460. At this early stage of the litigation, the extent to which this case will rest on
credibility determinations is not yet apparent. Accordingly, this factor weighs neither in favor of
nor against appointing counsel.
Fifth, it is conceivable that expert testimony will be required at trial. As Plaintiff aptly
points out, expert testimony may be required to assess “aluminous discovery regarding decades of

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statistical data.” Mot. for Appt. of Counsel, January 24, 2022, D.E. 52, at 6. Thus, the fifth factor
weighs in favor of appointing pro bono counsel.
Lastly, the sixth factor, whether Plaintiff can attain and afford counsel, weighs in favor of
granting Plaintiff’s motion for appointment of counsel. Plaintiff has been incarcerated for nearly
50 years, with little ability to obtain counsel on his own. Moreover, when Plaintiff applied for in
forma pauperis status on May 24, 2016, he indicated that he was making less than $150 per month
in prison. The District Court found this sufficient to grant him in forma pauperis status and did so
on March 15, 2017. Application to Proceed in Forma Pauperis, D.E. 8; Memorandum/Order, D.E.
10. Accordingly, the sixth factor weighs in favor of granting Plaintiff’s motion for pro bono
counsel.
Plaintiff’s motion to appoint pro bono counsel meets most of the Tabron factors, and,
therefore, the Court finds that appointment of pro bono counsel is appropriate at this time. Parham,
126 F.3d at 461 (finding appointment appropriate where most factors are met). For the reasons set
forth above, the Court grants Plaintiff’s motion to appoint pro bono counsel.
III.

CONCLUSION
A balancing of the factors set forth above weighs in favor of granting Plaintiff’s motion for

the appointment of pro bono counsel. Therefore, the Court grants Plaintiff’s motion to appoint pro
bono counsel, D.E. 52.
s/ Michael A. Hammer___________________
UNITED STATES MAGISTRATE JUDGE
Dated: March 29, 2022

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