STEINHARDT v. BERNARDVILLE POLICE DEPARTMENT et al

Filing 52

ORDER denying 23 Motion to Appoint Pro Bono. Signed by Magistrate Judge Lois H. Goodman on 07/31/2018. (Gonzalez, P)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANNETTE L. STEINHARDT,

Civil Action No. 17-2169 (MAS)(LHG)

Plaintiff,
v.
BERNARDVILLE POLICE
DEPARTMENT, et al.,

ORDER DENYING APPOINTMENT
OF
PRO BONO COUNSEL

Defendants.

This matter has been opened to the Court upon a Motion filed by pro se Plaintiff Annette
L. Steinhardt (“Plaintiff”) seeking appointment of pro bono counsel pursuant to 28 U.S.C.
§ 1915(e)(1) (the “Motion) [Docket Entry No. 23]. Defendants have not opposed the Motion.
For the reasons set forth below, Plaintiff’s Motion for Appointment of Pro Bono Counsel is
DENIED.
I.

BACKGROUND
Plaintiff filed an initial Complaint on March 29, 2017. [Docket Entry No. 1]. The

Honorable Michael A. Shipp, U.S.D.J., dismissed that Complaint for failure to state a claim
pursuant to Federal Rule of Procedure 12(b)(6) and gave Plaintiff leave to file an Amended
Complaint. Memorandum and Order entered January 12, 2018 [Docket Entry No. 31]. Plaintiff
filed a Second Amended Complaint on February 14, 2018. [Docket Entry No. 33].
The Second Amended Complaint (“SAC”) consists of twenty-seven pages and names at
least fifteen Defendants, including the Bernardsville Borough Council, the Bernardsville Police
Department, several of its officers, Bernardsville Mayor Kevin Sooy, retired Municipal Court
Judge Miles Winder, III, and Paul Egan, Esq., of the Office of the Attorney General for New

Jersey. SAC at 2–3, 7–10. 1 The Second Amended Complaint appears to allege under 42 U.S.C.
§ 1983 that Bernardsville police and Borough officials engaged in a pattern of mistreating
Plaintiff, including, among other acts: attempting to seize her dog, refusing to enforce parking
and property ordinances, shredding evidence that she was assaulted by a third party; refusing to
assist her in a dispute with a construction contractor; and refusing to issue a police report
documenting theft and vandalism of her personal property. SAC at 11–26.
In response to the Second Amended Complaint, Defendants have filed a series of
Motions to Dismiss, which are currently before the Court. [Docket Entry Nos. 36–39].
II.

DISCUSSION
Plaintiff’s Motion to Appoint Pro Bono Counsel is terse, consisting essentially of an

assertion that she lacks the funds to pay for an attorney, and the following paragraph:
In order to proceed with my case I need assistance of counsel.
In some states pro se can call [and] ask questions to a lawyer on
call. The State of New Jersey does not have this service. I am out
of State [and] can not do research at the Court library. Since I am
up against skilled trial attorneys I am not sure what is required. I
am a lay person when it comes to court. However, all attornies
[sic] that have reviewed my case feel it is a good case; with
outstanding evidence.
Motion at 3. The Court also reviewed Plaintiff’s request to proceed in forma pauperis. [Docket
Entry No. 1-1].
Courts are granted discretion in appointing counsel, and civil litigants have no
constitutional or statutory right to appointment of counsel. Parham v. Johnson, 126 F.3d 454,
456–457 (3d Cir. 1997). As a threshold matter, the court must first determine whether the

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For clarity, herein the Court identifies pages of the Second Amended Complaint by the page
numbers imparted by the Court’s CM/ECF system rather than the document’s internal
pagination.
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plaintiff’s claim has merit in fact and law. Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). If
the claim has merit, the court should then consider: 1) the plaintiff’s ability to present his or her
own case; 2) the complexity of the legal issues involved; 3) the degree to which factual
investigation will be necessary and the ability of the plaintiff to pursue such investigation; 4) the
degree to which the 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. While this list of factors is not exhaustive,
“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).
The Court has fully reviewed the operative Complaint and considered Plaintiff’s
submission. At this very preliminary stage, and without opining as to the ultimate merits of
Plaintiff’s suit, the Court is satisfied that the Second Amended Complaint possesses sufficiently
arguable merit in fact and law to warrant proceeding with an assessment of her Motion for pro
bono counsel. [Docket Entry No. 42 at 2].
Once a court has established that a plaintiff’s claim has arguable merit in fact and law,
the first factor to be considered is the plaintiff’s ability to present his or her own case. Tabron, 6
F.3d at 155–156. In weighing this factor, the court considers plaintiff’s education level, literacy,
prior work experience, prior litigation experience, and plaintiff’s ability to understand English.
Id. The court also looks to any conditions which may hamper the plaintiff’s ability to press
claims, including his ability to use a typewriter, photocopying machine, telephone, or computer.
Id.

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With respect to the first factor under Tabron, as already noted, Plaintiff asserts that she is
a layperson and that she does not have access to the Court’s library because she resides out of
state. While Plaintiff states that she lacks legal training, she has not disclosed her level of
education or prior work experience. From a review of her Second Amended Complaint it is
readily apparent that Plaintiff is literate, understands English, and can express her concerns, if
not clearly, to a degree sufficient to convey her meaning. Plaintiff’s assertion that she lacks
access to this Court’s law library because she resides out of state is less than persuasive because
that she likely has similar resources available to in her state of residence, such as public libraries,
court libraries, and the internet. This factor therefore weighs against the appointment of pro
bono counsel.
The Court must next consider the complexity of the legal issues presented in the case.
Tabron, 6 F.3d 147 at 156. Plaintiff does not argue that this case presents complex legal issues.
To the extent the Second Amended Complaint attempts to plead constitutional claims, such
claims are fairly straightforward and she appears able to comprehend the applicable legal
principles. Council v. Nash, Civ. No. 06-007, 2007 WL 1651191, at *2 (D.N.J. June 1, 2007).
This factor therefore weighs against the appointment of pro bono counsel.
The third factor the Court considers is the degree to which factual investigation will be
necessary and a plaintiff’s ability to pursue such investigation. Parham, 126 F.3d at 457. Pro
bono counsel may be appointed when a plaintiff’s claim is likely to require extensive discovery
and knowledge of complex discovery rules, and when a plaintiff’s confinement may prevent him
from pursuing his claims. Tabron, 6 F.3d at 156. Plaintiff is not incarcerated and she has not
argued that factual investigation in this matter will prove extensive or complex. Plaintiff should

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be able to conduct the necessary factual investigation through ordinary discovery methods. Id.
This factor thus weighs against granting counsel.
The fourth factor considered by the Court is the degree to which the case is likely to turn
on credibility determinations. Parham, 126 F.3d at 457. Pro bono counsel may be warranted
when witness credibility is a key issue and the factfinder is required to decipher conflicting
testimony. Tabron, 6 F.3d at 156. Plaintiff does not argue that this case is likely to turn on
credibility issues and, at this stage, the Court sees no reason to conclude that it would. This
factor therefore weighs against appointment of pro bono counsel.
Appointment of pro bono counsel may be warranted when a plaintiff’s claim requires
expert testimony. Tabron, 6 F.3d 147, 156. Plaintiff does not allege that expert testimony will
be required in this case and, at this stage, the Court finds no reason to conclude that an expert
will be necessary. This factor therefore weighs against appointment of pro bono counsel.
Finally, the Court should consider whether a plaintiff can obtain and afford counsel on
his or her own behalf. Parham, 126 F.3d at 457. Plaintiff argues that she lacks the funds to pay
an attorney and that she “struggle[s] to get by.” Her assertion, however, must be measured
against the Court’s prior decision denying her request to proceed in forma pauperis based on its
finding that “Plaintiff has adequate financial resources such that she is not indigent.” Order
entered April 26, 2017 [Docket Entry No. 4]. Plaintiff has not submitted any information
indicating that her financial situation has changed. This factor therefore also weighs against the
appointment of pro bono counsel.

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The Court has considered the balance of the Tabron factors and finds that pro bono
counsel is not warranted at this time. For these reasons and for good cause shown,
IT IS on this 31st day of July, 2018
ORDERED that Plaintiff’s Motion to Appoint Pro Bono Counsel [Docket Entry No. 23]
is DENIED.

___________________________
LOIS H. GOODMAN
United States Magistrate Judge

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