WILLIAMS et al v. ANGELO et al
Filing
39
LETTER OPINION & ORDER denying 38 Motion to Appoint Pro Bono Counsel. The denial is without prejudice to Plaintiffs' right to renew their application at a later date. Signed by Magistrate Judge Michael A. Hammer on 6/29/2022. (ld, )
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
Martin Luther
King Federal Building
& U.S. Courthouse,
50 Walnut Street,
Newark, New Jersey 07101
Chambers of
Michael A. Hammer,
United States Magistrate Judge
To:
All litigants
June 29, 2022
LETTER OPINION & ORDER
RE:
Williams v. Angelo,
Civil Action No. 20-07237 (ES) (MAH)
Dear Litigants:
Before the Court is Plaintiffs Thaddeus Thomas and Nasheed Williams’s motion for the
appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1). Mot. For Pro Bono
Counsel, May 2, 2022, D.E. 38, at 1. The Court has reviewed Plaintiffs’ submissions and,
pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1, considered the motion
without oral argument. For the reasons set forth below, Plaintiffs’ request is denied without
prejudice.
BACKGROUND
Plaintiffs initiated this matter by filing a civil rights Complaint against Defendants on
June 8, 2020. Compl., June 8, 2020, D.E. 1. Plaintiffs are civilly committed detainees confined at
East Jersey State Prison (“EJSP”), and Defendants are EJSP employees. Id. at 3-9. Plaintiffs
allege that Defendants violated their constitutional rights by neglecting to sufficiently protect
them from contracting COVID-19 while in custody. Pls.’ Statement of Claims, June 8, 2020,
D.E. 1-2, at 1-9. Specifically, Plaintiffs contend Defendants knowingly placed COVID-positive
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detainees in the same units as COVID-negative detainees on March 11, 2020, exposing Plaintiffs
to the virus and causing them to later test positive. Id. at 1, 7, 9, 13-15. Plaintiffs also claim
Defendants failed to sanitize communal living spaces and did not provide them with COVID-19
tests until two months after their exposure to the virus. Id. at 7, 9.
Plaintiffs jointly filed an application to proceed in forma pauperis, which the Court
temporarily granted on June 23, 2020. Pls.’ In Forma Pauperis Appl., June 8, 2020, D.E. 1-1
(“IFP Appl.”); Memorandum & Order, June 23, 2020, D.E. 2, at 2. At the Court’s instruction,
Plaintiffs individually applied to proceed in forma pauperis on July 24, 2020, but those
applications have seemingly not been adjudicated. Pls.’ Second In Forma Pauperis Appls., July
24, 2020, D.E. 9 (“Second IFP Appl.”). Nearly three months later, on October 13, 2020,
Defendants moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). Defs.’ Br. in Supp. of Mot. to Dismiss, Oct. 13, 2020, D.E. 19-1, at 1. The Court
granted Plaintiffs an extension of the deadline to respond to Defendants’ motion to dismiss.
Order, July 28, 2021, D.E. 31, at 2. Plaintiffs filed a letter in opposition on August 18, 2021. Pls.’
Letter to Ct., Aug. 18, 2021, D.E. 33, at 1.
On May 2, 2022, during the pendency of Defendants’ motion to dismiss, Plaintiffs filed
the instant motion for the appointment of pro bono counsel. 1 Mot. For Pro Bono Counsel, D.E.
38, at 1. The Court considers the motion unopposed.
DISCUSSION
The appointment of pro bono counsel in a federal civil case is a privilege, not a statutory
or constitutional right. Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011); Parham v.
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As of the date of this Opinion, the District Court has not adjudicated Defendants’ motion to
dismiss.
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Johnson, 126 F.3d 454, 456 (3d Cir. 1997). Courts nevertheless have the ability and discretion to
appoint counsel for indigent civil litigants under 28 U.S.C. § 1915(e)(1). Montgomery v.
Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir.
1993)). A court may appoint counsel at any point during litigation, and must make that decision
on a “case-by-case basis.” Tabron, 6 F.3d at 157-58. The Third Circuit Court of Appeals has
cautioned 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.
The Court’s consideration of the instant motion is guided by the multi-part framework set
forth by the Third Circuit in Tabron v. Grace, 6 F.3d at 156-57. The Court must first determine
“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 applicants’ claims have merit, the Court considers
the following non-exhaustive 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;
[and]
(6) whether the plaintiff can attain and afford counsel on his own
behalf.
Parham, 126 F.3d at 457 (citing Tabron, 6 F.3d at 155-56, 157 n.5).
The Court assumes that Plaintiffs’ claims have merit and turns to the
first Tabron factor. When analyzing a plaintiff’s ability to present their case, courts generally
consider the plaintiff’s “education, literacy, prior work experience, and prior litigation
experience.” Tabron, 6 F.3d at 156. Courts also consider the restraints placed upon a litigant
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where, as here, they are incarcerated, id., in addition to the applicant’s “access to necessary
resources like a typewriter, photocopier, telephone, and computer.” Parham, 126 F.3d at 459. In
this case, Plaintiffs’ renewed in forma pauperis applications list their current employer as
“S.T.U.,” but Plaintiffs’ roles and prior work experiences are unclear. Second IFP Appl., D.E. 9,
at 1, 7. Plaintiff Williams reports that he has six years of schooling; Plaintiff Thomas has
twelve. Id. at 5, 10. It also warrants repeating that Plaintiffs are civilly-committed detainees
confined at EJSP and, as such, are unable to leave the facility. Compl., D.E. 1, at 4-5.
Plaintiffs argue their confinement at EJSP restricts their ability to produce documents and
make legal arguments. Mot. For Pro Bono Counsel, D.E. 38, at 3-4. The record indicates,
however, that Plaintiffs have filed several letters with the Court regarding the status of this case,
including a letter raising legal arguments in opposition to Defendants’ motion to dismiss. See
Pls.’ Letter to Ct., D.E. 33, at 4-5; Pls.’ Letter to Ct., Jan. 21, 2021, D.E. 23; Pls.’ Letter to Ct.,
Feb. 25, 2021, D.E. 28. Plaintiffs’ submissions are cogent and demonstrate their ability to present
the essential facts that form the basis of their claims, including relevant dates, locations, and the
names of the accused parties. See Pls.’ Statement of Claims, D.E. 1-2, at 1, 17, 27. Further, while
neither the instant motion nor Plaintiffs’ in forma pauperis applications address Plaintiffs’ prior
litigation experience, it appears Plaintiff Thomas’s is extensive. Thomas is a plaintiff in several
matters previously or currently being litigated in this District, including: (1) Thomas v. Adams,
Civ. No. 10-5026 (D.N.J. Sept. 29, 2010); (2) Graham v. Ottino, Civ. No. 11-7125 (D.N.J. Apr.
13, 2015); (3) Thomas v. Ware-Cooper, Civ. No. 13-2429 (D.N.J. June 3, 2014); (4) Thomas v.
Singer, Civ. No. 13-3799 (D.N.J. June 3, 2014); (5) Thomas v. Haskins, Civ. No. 13-5501
(D.N.J. June 2, 2014); (6) Thomas v. Main, Civ. No. 14-5532 (D.N.J. Apr. 13, 2015); and
(7) Thomas v. Estrada, Civ. No. 19-20964 (D.N.J. June 17, 2021). The Court determines from
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the foregoing that Plaintiffs possess the ability to present their own case and advocate on their
own behalf, in spite of their detention. This factor therefore weighs against the appointment of
counsel.
The Court also finds the legal issues involved in this matter are not complex. Complexity
supports appointment “where the law is not clear, [as] it will often best 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. Courts also consider the “proof going towards the ultimate issue and the discovery
issues involved.” Parham, 126 F.3d at 459. Plaintiffs challenge the constitutionality of their
confinement conditions and the practices employed by Defendants at EJSP pursuant to 42 U.S.C.
§ 1983. See Compl., D.E. 1, at 1; Pls.’ Statement of Claims, D.E. 1-2, at 25. The law is wellsettled that “a failure of prison officials to provide minimally civil conditions of confinement to
pre-trial or civilly-committed detainees, or deliberate indifference to a serious medical need[] of
such detainees, violates their right not to be punished without due process of the law.” Banda v.
Corzine, Civ. No. 07-4508, 2007 WL 3243917, at *8 (D.N.J. Nov. 1, 2007); see also Bell v.
Wolfish, 441 U.S. 520, 520, 537-38 (1979). Plaintiffs have given the Court no indication that this
matter will involve extraordinarily complex or groundbreaking legal issues. Accordingly, the
second Tabron factor disfavors the appointment of counsel.
The Court next considers the degree to which factual investigation will be necessary and
Plaintiffs’ ability to pursue such investigation. The Third Circuit has stated that “courts should
consider a prisoner’s inability to gather facts relevant to the proof of his claim” in analyzing this
factor. Montgomery, 294 F.3d at 503. “[T]he court may also consider the extent to which
prisoners and others suffering confinement may face problems pursuing their claims,” such as
“where the claims are likely to require extensive discovery and compliance with complex
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discovery rules.” Tabron, 6 F.3d at 156 (citing Rayes v. Johnson, 969 F.2d 700, 703 (8th Cir.
1992)). In Parham, the Third Circuit determined this factor weighed in favor of appointing
counsel to an incarcerated plaintiff because the plaintiff’s medical malpractice case “involve[d]
complex facts and medical records that even most lawyers struggle to comprehend.” 126 F.3d at
460. The Parham court also noted that the district court granted judgment as a matter of law
because the plaintiff did not have an expert witness, and “[a] lawyer conducting discovery would
probably have recognized that it was necessary to obtain expert testimony.” Id. Similarly, in
Montgomery, the Third Circuit found several circumstances “demonstrate[d] a clear need for
factual investigation beyond that which [the plaintiff] could conduct from his prison cell.” 294
F.3d at 503. The court emphasized “[t]he absence of medical records that were vital to
Montgomery’s [deliberate indifference] claim, the defendants’ resistance to Montgomery’s
requests during discovery, and Montgomery’s increasingly apparent inability to navigate his
case’s complex discovery rules.” Id. at 504. In contrast, Plaintiffs have not demonstrated an
inability to conduct factual discovery. The Court understands Plaintiffs’ concern that it is more
difficult to acquire medical records and legal documents in confinement, Mot. For Pro Bono
Counsel, D.E. 38, at 4, but the Complaint and several of Plaintiffs’ submissions to the Court
indicate that Plaintiffs understand the facts forming the basis of their claims, what records are of
importance, and how to request those materials. See Pls.’ Statement of Claims, D.E. 1-2 at, 1-11,
21; Pls.’ Letter to Ct., D.E. 23, at 1. Thus, the third factor also weighs against the appointment of
counsel.
The Court examines the amount a case is likely to turn on credibility determinations in
assessing factor four. Parham, 126 F.3d at 460. Because most cases require at least some
credibility determination, the Third Circuit has instructed courts to consider “whether the case
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[will be] solely a swearing contest” in analyzing this factor. Montgomery, 294 F.3d at 505 (citing
Parham, 126 F.3d at 460). “[A] ‘swearing contest’ occurs when the resolution of the case ‘may
well depend on nothing more than whom the finder of fact believes.’” Abulkhair v. U.S. Postal
Serv., Civ. No. 13-7796, 2014 WL 1607379, at *4 (D.N.J. Apr. 22, 2014) (quoting Wassell v.
Youkin, Civ. No. 07–326, 2008 U.S. Dist. LEXIS 1820, at *14 (W.D. Pa 2008)). The Court can
only surmise as to whether credibility determinations will dictate the outcome of this case.
Plaintiffs have not addressed this factor and the parties are arguably still in the beginning stages
of the discovery process. See Pretrial Scheduling Order, Apr. 25, 2022, D.E. 37, at 3 (directing
parties to serve written discovery by June 17, 2022, and respond within sixty days of receipt). It
is therefore unclear whether documents substantiating the parties’ claims and defenses will be
produced, or whether the parties will largely rely upon credibility, should the Complaint survive
Defendants’ motion to dismiss. The Court therefore holds this factor is neutral.
The Court asks whether this matter will require the testimony of expert witnesses in
considering factor five. Parham, 126 F.3d at 460. Plaintiffs’ motion fails to specify what expert
testimony Plaintiffs require in making their case against Defendants. See Mot. For Pro Bono
Counsel, D.E. 38, at 3-4. Accordingly, this factor also weighs against the appointment of
counsel.
The Court lastly considers Plaintiffs’ ability to afford and retain counsel. Tabron, 6 F.3d
at 156. As previously noted, Plaintiffs have been temporarily permitted to proceed in forma
pauperis. Memorandum & Order, D.E. 2, at 2. In their renewed in forma pauperis applications,
Plaintiffs reported an average monthly income of $350.00. Second IFP Appl., D.E. 9, at 1, 6.
Plaintiffs represent that their circumstances have not changed, and they are not financially
capable of hiring a part-time or full-time attorney. Mot. For Pro Bono Counsel, D.E. 38, at 3. The
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Court finds Plaintiffs’ financial status weighs in favor of appointing counsel. Indigence alone
does not, however, warrant the appointment of counsel. Clinton v. Jersey City Police Dep’t, Civ.
No. 07-5686, 2009 WL 2230938, at *1 n.4 (D.N.J. July 24, 2009); see also Johnson v. De
Prospo, Civ. No. 08-1813, 2009 WL 276098, at *3 (D.N.J. Feb. 5, 2009). The Tabron factors,
when balanced, disfavor the appointment of counsel in this matter. Plaintiffs’ motion will
therefore be denied.
CONCLUSION
For the foregoing reasons, the Court denies Plaintiffs’ motion for the appointment of pro
bono counsel, D.E. 38. The denial is without prejudice to Plaintiffs’ right to renew their
application at a later date.
/s Michael A. Hammer
Hon. Michael A. Hammer,
United States Magistrate Judge
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