HERNANDEZ v. MONTOYA et al
Letter Order Granting Pro Bono Application., Motions terminated: 66 MOTION to Appoint Pro Bono filed by ANGEL HERNANDEZ.. Signed by Magistrate Judge Michael A. Hammer on 9/27/2018. (byl)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Martin Luther King Federal Building
& U.S. Courthouse
50 Walnut Street
Newark, NJ 07101
Michael A. Hammer
United States Magistrate Judge
September 27, 2018
Northern State Prison
Newark, NJ 07114
All counsel of record
LETTER OPINION AND ORDER
Angel Hernandez v. Montoya, et al
Civil Action No. 16-4592 (KM)(MAH)
Presently before the Court is Plaintiff pro se Angel Hernandez’s second motion for
appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1), D.E. 66. For the reasons set
forth below, Plaintiff’s application is GRANTED.
Plaintiff, Angel Hernandez, filed this action on July 28, 2016, against multiple named and
unnamed officers of the City of Paterson Police Department alleging multiple violations of his
constitutional rights under 42 U.S.C. § 1983. Compl., D.E. 1. At the time Plaintiff filed the
Complaint, he also applied to proceed in forma pauperis, which was granted by the Hon. Kevin
McNulty on August 2, 2016. IFP Appl., D.E. 1-2; D.E. 2. On October 12, 2016, Defendants
Gonzalez, Esposito, Huntington, Judeh, and Macolino moved to dismiss Plaintiff’s Complaint
and on May 5, 2017, the Court denied Defendants’ motion. D.E. 23, 39. Defendant Montoya
moved to dismiss Plaintiff’s Complaint on October 10, 2016, which Judge McNulty also denied
on May 17, 2017. D.E. 15, 41. On October 23, 2017, Plaintiff filed his first motion to appoint
pro bono counsel, which the Court denied on November 29, 2017. D.E. 57, 60.
Plaintiff filed a second motion to appoint pro bono counsel on May 16, 2018. D.E. 66.
Plaintiff now argues that he “was unfairly prejudiced by being denied the appointment of
counsel” and that it is “in the interest of justice” to grant his request for counsel. Specifically, he
Applicant is learning disabled, and his academic grade level is 3rd grade…Applicants [sic] test score/grade level is 3.9, therefore making the applicant incapable
of understanding the legalese of law as it pertains to all aspects of law and his
Civil filing…Applicant furthermore does not speak English, as his native
language is Spanish.
Id. The instant motion contains two substantive changes: (1) inclusion of his scores on the Test
of Adult Basic Education; and (2) the claim that Plaintiff does not speak English. Id.
Additionally, on April 4, 2018, this Court received a Letter from Plaintiff (“Rios Letter”),
D.E. 64, which addressed the Court’s denial of his first motion to appoint pro bono counsel. The
Rios Letter begins with a statement from Roberto Rios, (1079803/SBI 706996-B), an inmate
incarcerated alongside Plaintiff at South Woods State Prison. According to the Rios letter,
Roberto Rios assisted in its drafting because “Mr. Hernandez seems to have a learning disability
he really does not comprehend.” Id. It continued, “I am aware that if any foregoing statements
made by me are willfully false, I am subject to punishment by law” which was followed by Mr.
Rios’ signature. Id. It goes on to state that Plaintiff has “relied souly [sic] on the assitance [sic]
of paralegals” and “all briefs and motions and missives are in fact done by others.” Id. Finally,
the Rios Letter addresses each of the Tabron factors and challenges the Court’s observations in
the denial of Plaintiff’s first motion to appoint pro bono counsel. Id.
In civil cases, neither the Constitution nor any statute gives civil litigants the right to
appointed counsel. 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). 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 (citing
Tabron, 6 F.3d at 156).
In the Third Circuit, the Court considers the framework established in Tabron.
Montgomery, 294 F.3d 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.” Montgomery, 294 F.3d
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 guideposts 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. Also, the Court of Appeals of 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
(Parham, 126 F.3d at 458).
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, Plaintiff
alleges that the Defendants used excessive force and utilized cruel and unusual punishment in
violation of his Fifth, Eight, and Fourteenth Amendment rights. It remains to be seen whether
Plaintiff can prove his claims. However, for the limited purpose of the Tabron analysis, the
claims set forth a cognizable cause of action. Indeed, the sufficiency of the claims has been
tested by two separate motions to dismiss, both of which failed. D.E. 15, 23, 39, 41.
The Court next 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. Plaintiff, through Mr. Rios, alleges that he has a learning
disability. Although Plaintiff did not submit a diagnosis by a qualified person to support the
learning-disability claim, he has submitted scores from the Test of Adult Basic Education
(“TABE”). D.E. 66. According to the TABE, Plaintiff has a grade level equivalent of anywhere
from a 2.7 to a 3.9. Id. Moreover, both the first motion to appoint pro bono counsel and the Rios
Letter make clear that Plaintiff cannot comprehend the legal issues involved in this matter. D.E.
57, 64. Accordingly, Plaintiff’s education level and comprehension skills weigh in favor of
granting counsel. See Woodham v. Sayre Borough Police Department, 191 Fed. Appx. 111, 115
(3d Cir. 2006) (noting movant’s grade 5.9 reading skill level and his trouble articulating weighed
in favor of appointing counsel); Perez v. Hauck, No. 07-5685, 2008 WL 797054, at *4 (D.N.J.
Mar. 20, 2008) (holding plaintiff’s third grade education, in conjunction with his inability to
understand English, “indicate[s] to this Court that Plaintiff is unlikely to be capable of pursing
Plaintiff also does not speak English, which requires him to obtain assistance from
paralegals. D.E. 64. Comprehension of English is a subject properly considered under the first
factor. Tabron, 6 F.3d at 156. Taking as true Plaintiff’s assertions that he does not speak English
and that all filings were written with the assistance of paralegals, his inability to comprehend and
express himself in English weighs in favor of appointing counsel. Valdez v. Flax, No. 17-3848,
2018 WL 276906, at *4 (D.N.J. Jan. 3, 2018) (holding inability to understand and speak English
renders a plaintiff incapable of pursuing claims, which tips scales in favor of appointing pro bono
counsel); Perez, 2008 WL 797054, at *4 (same).
Additionally, Plaintiff has had issues with meeting deadlines because of his incarceration
and has requested extensions as a result. See D.E. 34, 56. Moreover, it is evident he does not
always have access to a computer or typewriter as some filings have been submitted handwritten
while others have been typewritten. His incarceration has also caused issues with sending and
delivering correspondence, with mail sometimes returned as undeliverable and his address often
changing. D.E. 33, 36, 37, 45, 46, 55, 61, 67.
While Plaintiff has made filings and responded to motions, D.E. 5, 24, 29, 31, 34, 35, 36,
47, 55, 56, 57, this fact alone is not dispositive of Plaintiff’s ability to present his case.
Woodham, 191 Fed. Appx. at 115 (“[A] plaintiff’s ability to file and respond to motions does not
translate to an ability to present his own case.”) (citing Parham, 126 F.3d at 459). Furthermore,
Plaintiff now alleges that all documents filed with the Court have been done with the assistance
of paralegals. Rios Letter, D.E. 64. For these reasons, this factor weighs in favor of appointment
The Court must next 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). Courts have reached different
conclusions regarding the complexity of excessive-force claims. This Court need not resolve
that disparity here. Plaintiff’s education level, language skills, and incarceration persuade the
Court that absent appointment of counsel, he will be severely limited in his ability to present his
own case. The Court’s conclusion is buttressed by the fact that Plaintiff alleges claims against
multiple officers. Piserchia, 2013 WL 4436183, at *3 (holding incarceration of plaintiff tips
factor two in favor of appointing counsel due to impediments posed in the factual discovery
process). Thus, this factor favors appointing counsel.
The Court must next consider the degree of factual investigation necessary and Plaintiff’s
ability to conduct it. In the renewed application, Plaintiff does not allege new facts or argument
on this issue. Instead, Plaintiff reiterates the same arguments that he did in his first Motion to
Appoint Pro Bono Counsel. The only relevant allegation made was in the Rios Letter. D.E. 64
(“I’m encarcerated [sic] thus hampering my ability to pursue investigative measures.”). This
allegation is insufficient to tip this factor in Plaintiff’s favor as the mere fact that an individual is
incarcerated does not necessitate the appointment of counsel. See Montgomery, 294 F.3d at 503
(“This is not to say that counsel should be appointed in every potential meritorious claim by an
indigent prisoner where some investigation may be required.”); Al-Wahid Ali v. DOC, No. 082425, 2008 WL 4502052, at *3 (D.N.J. Sept. 29, 2008). However, the Court must allow that at
least some factual investigation will necessary, insofar as an excessive-force allegation may be a
fact-intensive inquiry. Therefore, this factor is neutral.
Fourth, it is too early for the Court to conclude that this case will turn on credibility
determinations. Additionally, Plaintiff has not alleged any more facts in the instant motion
which speak to this factor than he did in his first motion. Accordingly, this factor is neutral.
Fifth, there is no indication that any expert testimony will be required at trial. Plaintiff’s
allegations, that of Defendants’ use of excessive force, have not changed since Plaintiff’s first
motion for pro bono counsel. Thus, the fifth factor weighs against appointing pro bono counsel.
Lastly, the sixth factor, whether Plaintiff can attain and afford counsel, remains the same
as it did under Plaintiff’s first motion and it weighs in favor of appointment of 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.
A balancing of the factors set forth above weighs in favor of granting Plaintiff’s request
for counsel. Therefore, Plaintiff’s motion for the appointment of pro bono counsel, D.E. 66, is
s/ Michael A. Hammer__________
United States Magistrate Judge
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