MULLINGS v. RY MANAGEMENT CO., INC. et al

Filing 17

OPINION AND ORDER DENYING without prejudice 8 Motion to Appoint Pro Bono. Signed by Magistrate Judge James B. Clark on 2/22/17. (cm )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WES MULLINGS,
Plaintiff,
v.
RY MANAGEMENT et al,
Defendants.

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OPINION AND ORDER
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THIS MATTER comes before the Court on a Motion by pro se Plaintiff Wes Mullings
for the appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e). [Dkt. No. 8]. 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 September 12, 2016, alleging claims of negligence against
Federal Defendants and a private management company. [Dkt. No. 1]. Specifically, Plaintiff
claims that Defendants failed to protect him from a neighbor’s injurious second-hand smoke. [Dkt.
No. 1]. On September 9, 2016, Plaintiff filed an application to proceed in forma pauperis, which
the Court granted on September 20, 2016. [Dkt. Nos. 1, 2]. Plaintiff filed the present Motion for
Pro Bono Counsel on September 28, 2016. [Dkt. No. 8].
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 for a civil case 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 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 to the Tabron
factors, Plaintiff has not demonstrated at this stage of the proceeding that pro bono counsel is
warranted.

Plaintiff’s 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, and the present motion for the appointment of pro bono
counsel. These filing themselves demonstrate that Plaintiff is able to present his case. Plaintiff
claims that he needs counsel because he “lack[s] familiarity with the rules of evidence and
discovery needed to translate the understanding of the law into presentation of the proofs.” [Dkt.
No. 8]. At this time, with only a Motion to Dismiss filed by Defendants, [Dkt. No. 13], Plaintiff
has no need to engage in any type of evidentiary or discovery analysis. Plaintiff only needs to
demonstrate that his Complaint states a claim for relief and that this Court has subject matter
jurisdiction. Accordingly, Plaintiff’s arguments are pre-mature at this time.
Additionally, the claims presented by Plaintiff do not appear to be complex in nature.
Plaintiff’s claims for damages resulting from inhalation of second hand smoke—which sounds in
negligence—are not novel. And 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 at this early stage in the litigation.
The Court acknowledges that Plaintiff is of limited financial means and unable to afford
his own counsel. While the sixth Tabron factor weighs 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). It must be weighed in
conjunction with the lack of funding to pay appointed counsel, the limited supply of comptent
lawyers willing to do pro bono work, and the value of a lawyer’s time. See Jenkins v. D’Amico,

Civ. Action No. 06-2027, 2006 WL 2465414, at *1 (D.N.J. Aug. 22, 2006) (citing Tabron, 6 F.3d
at 157-58).
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 weigh 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;
IT IS on this 22nd day of February, 2017,
ORDERED that Plaintiff’s Motion for the appointment of pro bono counsel
[Dkt. No. 8] is DENIED WITHOUT PREJUDICE.

s/ James B. Clark, III
JAMES B. CLARK, III
United States Magistrate Judge