ROSENBERG et al v. THE STATE OF NEW JERSEY et al

Filing 12

OPINION AND ORDER; that Plaintiff's Motion (ECF No. 10) is DENIED. The Clerk of the Court is directed to terminate the Motion at ECF No. 10.. Signed by Magistrate Judge Edward S. Kiel on 2/16/2021. (ld, )

Case 2:20-cv-07117-BRM-ESK Document 12 Filed 02/16/21 Page 1 of 5 PageID: 739

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RUDY ROSENBERG, et al.,

Case No. 20–cv–07117–BRM–ESK

Plaintiffs,
v.

OPINION AND ORDER

THE STATE OF NEW JERSEY, et
al.,
Defendants.
KIEL, U.S.M.J.

THIS MATTER is before the Court on pro se plaintiff Eltha Jordan’s motion
for the appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1)
(Motion).

(ECF No. 10.) No defendant has appeared in this matter and the

Motion is unopposed.

For the following reasons, the Motion is DENIED.
BACKGROUND

Plaintiffs Rudy Rosenberg (Rudy), Jacqueline Rosenberg, and Eltha Jordan
(collectively, Plaintiffs) filed a verified complaint on June 10, 2020 against
various government entities and state actors, including the New Jersey Attorney
General and Bergen County Sheriff.

(ECF Nos. 1 and 1-1.) Plaintiffs

simultaneously submitted an Application to Proceed In Forma Pauperis pursuant
to 28 U.S.C. § 1915(a)(1) (Application).

(ECF No. 1-2.) Plaintiffs then filed a

verified amended complaint on August 9, 2020 (Amended Complaint).

(ECF No.

6.) District Judge Brian R. Martinotti granted Plaintiffs’ Application on
December 1, 2020 (ECF No. 7), and deemed the Amended Complaint “filed” as of
December 1, 2020.

(Docket Entry after ECF No. 7.)

The Amended Complaint is comprised of 160 pages with over 1,100 separate
paragraphs, exclusive of sub-paragraphs.

(ECF No. 6 pp. 1–159.)

A multitude

of defendants are identified in both the caption and body of the pleading.

(Id.

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¶¶ 64–202.)

The Amended Complaint recites a litany of vague Federal and state

claims, including violations of the New Jersey and New York Constitutions, the
First, Fourth, Fifth, Sixth and Fourteenth Amendments of the United States
Constitution, various Federal statutes including the Americans with Disabilities
Act, “the common law” of New York and New Jersey, “in addition [to] all other
rights raised and implicated herein.”

(Id. ¶¶ 1, 3, 4, 30.) The Amended

Complaint contains a “Constitutional Violations Summary,” enumerating an
assortment of claims ranging from “[t]heft and [e]xtortion” to fabrication of
evidence.

(Id. pp. 10, 11.)

The list of “Injuries,” while extensive, rather

resembles a collection of constitutional violations (“First Amendment”) or civil
cause of action (“invasion of privacy”).
in damages.

(Id. ¶ 53.)

Plaintiffs’ seek $35,000,000

(Id.)

The Amended Complaint elsewhere alleges the existence of a “layered civil,
quasi-criminal and criminal prosecution conspirac[y]” that appears to involve the
New York City law enforcement authorities, prosecutors, and “judicial actors.”
(Id. ¶¶ 16, 17.)

There are references to a “domestic violence” temporary

restraining order dated April 5, 2018, constructive evictions, “perjurious
complaints,” “falsely sworn papers,” and “false 911 calls.”

(Id. ¶¶ 18, 19, 22, 42,

43.) Plaintiffs’ claims appear to be based, in part, on “[criminal] convictions
against Rudy Rosenberg[.]”

(Id. ¶ 27.)

The events giving rise to this lawsuit

evidently span from January of 2007 to September of 2018.
Amended Complaint includes citations to Federal case law.

(Id. ¶ 8.)

The

(Id. ¶¶ 23, 27, 38,

39.)
Plaintiffs Rudy and Eltha Jordan identify themselves as “visible minorities”
and claim to suffer from cognitive disabilities.

(Id. ¶¶ 9, 10.) The Amended

Complaint alleges that defendants “conspired and engaged in malicious civil
prosecution with racially discriminatory and retaliatory motives against
Plaintiffs.”

(Id. ¶ 36.)

There is a reference to a “racial assault[.]”

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(Id. ¶ 45.)

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Plaintiffs filed the Motion on December 22, 2020.

(ECF No. 10.)

Plaintiffs recite the standard applicable to applications for pro bono counsel and
submit that they have “demonstrated” the factors under Tabron v. Grace, 5 F.3d
146 (3d Cir. 1993).

(Id. ¶ 47.)
LEGAL ANALYSIS AND DISCUSSION

The Court has the discretion to appoint attorneys to represent litigants who
are “unable to afford counsel[.]”

28 U.S.C. § 1915(e)(1).

The appointment of

counsel in a civil case is a privilege, not a statutory or constitutional right.
Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011).
counsel “must be made on a case-by-case basis.”

The decision to appoint

Tabron, 6 F.3d at 157–58.

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 v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002)

(citing Parham v. Johnson, 126 F.3d 454, 458 (3d Cir. 1997)).
The decision to appoint pro bono counsel for plaintiffs proceeding in forma
pauperis involves a two-step analysis.

Howard v. Reyes, No. 18-00800, 2020 WL

3958483, at *2 (D.N.J. July 13, 2020).

First, the Court “must decide … the

critical threshold determination of whether [plaintiff’s] case has arguable merit
in fact and law.”

Tabron, 6 F.3d at 158.

Once a plaintiff overcomes this

threshold, the Court should then consider the following factors: (1) the plaintiff’s
ability to present his or her own case; (2) the difficulty of the particular legal
issues; (3) the degree to which factual investigation will be necessary and
plaintiff’s ability to pursue an investigation; (4) plaintiff’s capacity to retain
counsel on his or her own behalf; (5) the extent to which a case is likely to turn
on credibility determinations; and (6) whether the case will require testimony
from expert witnesses.

See Tabron, 6 F.3d at 155–57.

exhaustive [and] should serve as a guidepost[.]”
Tabron, 6 F.3d at 155).

“This list of factors is not

Parham, 126 F.3d at 458 (citing

However, where the factual and legal issues “have not

been tested or developed by the general course of litigation … factors (2)–(5) of
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Parham’s test [are] particularly difficult to evaluate.”

Howard, 2020 WL

3958483, at *2 (citing Chatterjee v. Phila. Fed’n of Teachers, Nos. 99-04122 and
99-04233, 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 Motion fails to address or discuss whether Plaintiffs’ case has arguable
merit in fact or law.

Tabron, 6 F.3d at 158.

Plaintiffs merely submit, without

further discussion or analysis, that the Tabron factors have been “demonstrated
at this stage of the proceeding[,]” thus warranting the appointment of pro bono
counsel.

(ECF No. 10 ¶ 47.)

On this basis alone, the Motion is appropriately

denied.
Notwithstanding Plaintiffs’ failure to address the threshold determination
under Tabron in the first instance, the Court nevertheless questions whether
Plaintiffs’ case possesses arguable merit in fact or law.
is incoherent and unintelligible.
pleading remain murky.

The Amended Complaint

The theories of liability advanced in the

The identification of various government officials and

state actors, while somewhat helpful, contributes little to the determination of
whether this matter possesses some arguable merit.

Merely that the Amended

Complaint is lengthy does not make it meritorious.

At this juncture, the Court

is not positioned to glean meritorious causes of action from the Amended
Complaint.

As such, the Court finds that Plaintiffs’ claims are not sufficiently

“meritorious” in fact and law under the first prong of the two-step analysis.
Parham, 126 F.3d at 459.

Accordingly, the Motion is denied.

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Since the Court finds Plaintiffs’ claims lack arguable merit, the Court need
not analyze the “guidepost factors” under Parham.1
The Tabron Court recognized “the significant practical restraints on the
district courts’ ability to appoint counsel: the ever-growing number of prisoner
civil rights actions filed each year in the federal courts; the lack of funding to pay
appointed counsel; and the limited supply of competent lawyers who are willing
to undertake such representation without compensation.”

Tabron, 6 F.3d at

157. This Court recognizes that “where a plaintiff’s case appears to have merit
and most of the aforementioned [Parham] factors have been met, courts should
make every attempt to obtain counsel.”

Parham, 126 F.3d at 461 (citing Mallard

v. U.S. Dist. Ct., 490 U.S. 296, 310 (1989)).

Here, since Plaintiffs have not

satisfied their burden of showing that this lawsuit possesses some arguable merit
in fact and law, the Motion is denied.
CONCLUSION
Accordingly, and for the reasons stated above,
IT IS on this

16th day of February 2021

ORDERED that:

1.

Plaintiff’s Motion (ECF No. 10) is DENIED.

2.

The Clerk of the Court is directed to terminate the Motion at ECF No.

3.

The Clerk of the Court is directed to transmit a copy of this Opinion

10.
and Order to plaintiff by regular mail.
/s/ Edward S. Kiel
EDWARD S. KIEL
UNITED STATES MAGISTRATE JUDGE

Moreover, even if Plaintiffs had demonstrated that their case has some arguable
merit in fact and law, since the factual and legal issues in this case “have not been tested
or developed by the general course of litigation[,]” presently factors (2) through (5) of
Parham remain “particularly difficult to evaluate[.]” Howard, 2020 WL 3958483, at *2.
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