DAVIS v. FROEHLICH et al

Filing 52

OPINION AND ORDER denying 32 Plaintiff's Motion to Appoint Pro Bono Counsel. Signed by Magistrate Judge James B. Clark on 3/30/2022. (sm)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ABDUL DAVIS,

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Plaintiff,
v.
Captain DENNIS BURKE, et al.,
Defendants.

Civil Action No. 19-10620 (JMV)

OPINION AND ORDER

THIS MATTER comes before the Court on a Motion by pro se Plaintiff Abdul Davis for
the appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e). See Dkt. No. 32. Defendants
filed a brief in opposition to this motion. See Dkt. No. 36. For the reasons set forth below,
Plaintiff’s Motion for the appointment of pro bono counsel [Dkt. No. 32] is DENIED.
Plaintiff asserts Fourth, Fifth, and Fourteenth Amendment claims against Defendants
pursuant to 42 U.S.C. § 1983, alleging Defendants committed the following unlawful acts relating
to the April 21, 2016 arrest of Plaintiff: (1) Defendants arrested Plaintiff and conducted a search
of his apartment without a warrant; (2) the warrantless search and seizure inside Plaintiff’s
apartment was unreasonable because Defendants did not obtain freely given consent from
Plaintiff’s girlfriend; and (3) the lack of freely given consent was the result of police conduct that
overbore the will of Plaintiff’s girlfriend, thereby depriving her of the authority to consent to the
search of Plaintiff’s apartment. See Dkt. No. 12.
On April 22, 2019, Plaintiff filed his initial Complaint. See Dkt. No. 1. Thereafter, Plaintiff
filed an application to proceed in forma pauperis in this action. See Dkt. No. 3. Plaintiff’s
application to proceed in forma pauperis was granted on September 17, 2019. See Dkt. No. 5. On
the same day, the Court screened Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
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and dismissed it without prejudice for failing to state a claim on which relief may be granted, while
providing Plaintiff with leave to file an amended complaint within thirty days. See Dkt. No. 5. On
October 28, 2019, Plaintiff filed an application for an extension of time to file an amended pleading
pursuant to Fed. R. Civ. P. 6(b), see Dkt. No. 7, which was granted on November 6, 2019. See Dkt.
No. 8. On November 25, 2019, Plaintiff filed an Amended Complaint. See Dkt. No. 9. On January
30, 2020, the Court entered an opinion and order partially dismissing Plaintiff’s Amended
Complaint without prejudice because Plaintiff failed to state a 42 U.S.C. § 1983 claim against any
Defendant except Defendant Captain Dennis Burke. See Dkt. No. 10. The January 30, 2020 order
also afforded Plaintiff thirty days to file an amended complaint to cure any deficiencies with
respect to the other Defendants and allowed Count Four of the First Amended Complaint to
proceed solely as to Defendant Burke. See id. Thereafter, Plaintiff filed a document captioned in
the docket as “Third Amended Complaint” on March 12, 2020. See Dkt. No. 12.1
Plaintiff now 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 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;
The inexplicable labeling of what should have been the Second Amended Complaint as the “Third Amended
Complaint” appears to have been a clerical error. See Dkt. No. 12; cf. Dkt. Nos. 1 and 9.
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(5) whether the case will require the testimony of expert witnesses; and
(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. Further, 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). Additionally, the Third Circuit Court
of Appeals 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.” Id., 294 F.3d
at 499 (citing Parham, 126 F.3d at 458).
As to the initial question of whether Plaintiff’s claims have merit, the Court notes that
Plaintiff's First Amended Complaint [Dkt. No. 9] was screened by the Court under 28 U.S.C. §
1915(e)(2)(B) and allowed to proceed solely as to Defendant Burke. Thus, for the purposes of the
present motion, the Court will assume that Plaintiff's claims have at least some merit. The Court
does note, however, that regardless of whether 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.” Chatterjee v. Phila. Fed’n of Teachers,
No. 99-cv-4122, 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).
The Court now turns to the factors set forth in Tabron. When considering a plaintiff’s
ability to present a case, courts generally consider “education, literacy, prior work experience, and
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prior litigation experience.” Tabron, 6 F.3d at 156. In addition, “courts must consider whether the
plaintiff has access to necessary resources like a typewriter, photocopier, telephone, and
computer.” Parham, 126 F.3d at 459 (citing Tabron, 6 F.3d at 156). Plaintiff appears to be able to
present his case. Plaintiff's filings with the Court thus far reflect literacy, access to necessary
resources, and the ability to reference relevant legal authority. For example, without the assistance
of counsel, Plaintiff has filed a Complaint and an application to proceed in forma pauperis, he has
filed the First Amended Complaint and the Third Amended Complaint pursuant to the opinions
and orders of the Honorable John Michael Vasquez, U.S.D.J., and he has filed the present Motion
for the appointment of pro bono counsel [Dkt. No. 32]. These filings themselves demonstrate that
Plaintiff is capable of presenting his case. As such, the first Tabron factor weighs against the
appointment of counsel.
As to the second factor, “[w]here the legal issues are complex, it will probably serve
everyone involved if counsel is appointed.” Parham, 126 F.3d at 459 (citing Tabron, 6 F.3d at
156). The Court has held that 42 U.S.C. § 1983 cases may raise complex legal issues. See
Montgomery, 29 F.3d at 501 (citing Parham, 126 F.3d at 459). In Montgomery, the appointment
of pro bono counsel in a 42 U.S.C. § 1983 case was appropriate when discovery and presentation
difficulties hindered Plaintiff’s ability to present his case, despite the simplicity of the legal issues.
Montgomery, 29 F.3d at 505. Therefore, although a layperson, like Plaintiff, should be able to
comprehend what must be proven under § 1983, comprehension alone does not mean that a
plaintiff will ultimately be able to present the claim. Parham, 126 F.3d at 459. As such, “the
difficulty of the legal issues must be considered ‘in conjunction with Plaintiff’s capacity to present
his own case at trial.’” Montgomery, 29 F.3d at 503 (quoting Tabron, 6 F.3d at 157). Nevertheless,
Plaintiff asserts only that he is “a layman in matters of the law.” Dkt. No. 32 at p. 3. Plaintiff has

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not provided any explanation or support speaking to the complexity of the legal issues.
Additionally, Plaintiff’s constitutional claims are relatively straightforward, and he appears to
comprehend the legal issues. Accordingly, the Court finds that the second factor weighs against
Plaintiff.
Plaintiff’s motion for pro bono counsel does not address the third, fourth, and fifth Tabron
factors. As to the third factor, the appointment of pro bono counsel may be appropriate when a
plaintiff’s claim requires “extensive discovery and knowledge of complex discovery rules, and
when a plaintiff’s confinement may prevent him from pursuing his claims.” Archie v. Mercer Cnty
Courthouse, No. 19-cv-20976, 2021 WL 5422289, at *3 (D.N.J. Oct. 26, 2021) (citing Tabron, 6
F.3d at 156). Nevertheless, nothing in Plaintiff’s motion alleges that Plaintiff lacks the ability to
conduct a factual investigation without the assistance of counsel or that discovery would be
complicated. Consequently, the third factor appears to weigh against Plaintiff. Regarding the
fourth factor, pro bono counsel may be warranted when witness credibility is a key issue and when
the factfinder must decide between conflicting testimony. Tabron, 6 F.3d at 156. If a case appears
to be “solely a swearing contest” between witnesses, the case is likely to turn on credibility
determinations and will weigh in favor of appointing counsel. Parham, 126 F.3d at 460. At this
juncture, it is premature to consider whether the case will turn on credibility determinations, since
discovery is still ongoing and is currently scheduled to conclude on April 29, 2022. See Dkt. No.
46. Further, as to the fifth factor, there is no indication that expert testimony will be required at
trial. Accordingly, the third, fourth, and fifth Tabron factors appear to weigh against Plaintiff.
Turning to the sixth factor, Plaintiff was granted the ability to proceed in forma pauperis,
and there is nothing to indicate that Plaintiff’s financial situation has changed. Dkt. No. 5.
Moreover, Plaintiff asserts he is indigent and was incarcerated for over five years, which supports

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a finding that Plaintiff appears unable to retain his own counsel. See Dkt. No. 32 at p. 3. While
the final factor may weigh in Plaintiff’s favor, this factor 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 the appointment of counsel”).
The Court recognizes that issues may arise throughout the course of this litigation which
may raise a further question as to Plaintiff’s need for counsel. The Court will monitor this issue
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.
The Court having considered this matter pursuant to Fed. R. Civ. P. 78, and for good cause
shown;
IT IS on this 30th day of March, 2022,
ORDERED that Plaintiff’s Motion for the appointment of pro bono counsel [Dkt. No. 32]
is DENIED WITHOUT PREJUDICE.

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

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