WASHINGTON v. ELLIS et al
MEMORANDUM AND ORDER denying 122 Appeal Magistrate Judge Decision to District Court. Judge Bongiovannis rulings are AFFIRMED. Signed by Judge Peter G. Sheridan on 11/2/2020. (jdb)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. Action No.: 17-cv-7243 (PGS) (TJB)
CHARLES ELLIS, et al.,
This matter comes before the Court on pro se Plaintiff Randy Washington’s (“Plaintiff”
or “Mr. Washington”) appeal of orders entered by the Hon. Tonianne J. Bongiovanni, U.S.M.J.,
denying Mr. Washington’s requests for the appointment of pro bono counsel. (ECF No. 122).
Mr. Washington’s appeal to this Court is proper pursuant to Local Civil Rule 72.1(c)(1). Since
the issue of appointment of pro bono counsel has previously been brought before this Court on
appeal in this matter, the instant application has been decided based upon the written
submissions of the parties pursuant to Local Civil Rule 78.1(b). For the reasons stated herein,
the Court DENIES Mr. Washington’s application for pro bono counsel and AFFIRMS the
findings of Judge Bongiovanni.
In this case, Mr. Washington alleges that his hand was injured by Mercer County
Sheriff’s Officers at the Mercer Criminal Courthouse after Mr. Washington assaulted his public
defender in court. (See Am. Compl., ECF No. 38). Mr. Washington further alleges that upon
arriving back at the Mercer County Correction Center from the courthouse, he was
unconstitutionally denied medical assistance to treat his injured hand. (Id.).
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Mr. Washington has moved before Judge Bongiovanni for the appointment of pro bono
counsel on multiple occasions. Mr. Washington filed his first such motion on March 14, 2018.
(ECF No. 9). On May 10, 2018, Judge Bongiovanni denied Mr. Washington’s motion in a wellreasoned letter order. (ECF No. 10). Judge Bongiovanni set forth the controlling principles of
law and denied the motion on the grounds that this matter presents relatively straightforward
legal issues and is not unusually complex or complicated. (Id.). Additionally, Judge
Bongiovanni found that Mr. Washington had proved himself capable of presenting his claims
without the assistance of counsel, as evidenced by his unassisted: (i) filing of the Complaint; (ii)
filing of an application to proceed in forma pauperis which was granted; and (iii) filing of his
first motion for the appointment of pro bono counsel. (Id.).
On May 29, 2018, Mr. Washington appealed Judge Bongiovanni’s letter order denying
his first request for the appointment of pro bono counsel. (ECF No. 14). Oral argument on Mr.
Washington’s appeal was held on August 14, 2018. This Court entered an order denying the
appeal that same day. (ECF No. 25).
Later, on August 25, 2019, Mr. Washington submitted another letter asking Judge
Bongiovanni to appoint him pro bono counsel. (ECF No. 88). On October 7, 2019, Judge
Bongiovanni again denied his motion, reasoning that Mr. Washington has not argued any change
in circumstances from the time that his previous requests for counsel were denied. (Id.).
Further, Judge Bongiovanni held that Mr. Washington has continued to demonstrate his ability to
prosecute the matter, as evidenced by his sustained communications with the court over the
course of the litigation and his opposition to the defendant’s motion for summary judgment.
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On March 12, 2020, Mr. Washington filed yet another letter brief seeking an appointment
of pro bono counsel, but this time he addressed his letter brief to this Court (rather than Judge
Bongiovanni). (ECF No. 111). As such, on July 7, 2020, Judge Bongiovanni rendered a letter
order ruling that Mr. Washington’s March 12, 2020 filing shall be deemed as an appeal of her
decision to deny him pro bono counsel. (ECF No. 121). Notwithstanding, Mr. Washington filed
another brief in support of his appeal on July 7, 2020. (ECF No. 122). The defendants
responded to his appeal by letter dated July 13, 2020. (ECF No. 124).
While there is no right to counsel in a civil case, (see Tabron v. Grace, 6 F.3d 147, 153
(3d Cir. 1993); Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997)), “[t]he court may
request an attorney to represent any person unable to afford counsel,” 28 U.S.C. § 1915(e)(1).
The District Court has significant discretion in deciding whether to appoint pro bono counsel.
Hopkins v. Medio, No. CIV.A. 12-5134 JBS, 2015 WL 4770864, at *2 (D.N.J. Aug. 12, 2015).
In making that determination, a court first must consider whether a plaintiff’s claim “has some
merit in fact and law.” Tabron, 6 F.3d at 155. Once that initial threshold is satisfied, the court
should consider the following additional factors, which the Third Circuit set forth in Tabron:
(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; (6) whether the plaintiff can attain
and afford counsel on his own behalf.
Hopkins, 2015 WL 4770864, at *2-3 (citing Parham, 126 F.3d at 457). “This list
of factors is not exhaustive, nor is a single factor determinative.” Id.
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“Under 28 U.S.C. § 636(b)(1)(A), a magistrate judge has authority to hear and determine
non-dispositive pretrial matters,” and “[d]ecisions on motions to appoint counsel are nondispositive.” Turner v. Doe, No. CV155942 (RBK/AMD), 2018 WL 6630511, at *3 (D.N.J.
Dec. 19, 2018), aff’d sub nom. Turner v. Scott, 781 F. App’x 47 (3d Cir. 2019). Magistrate
judges are given “wide discretion” in addressing such motions. Marks v. Struble, 347 F. Supp.
2d 136, 149 (D.N.J. 2004).
When a party appeals a matter within the purview of a magistrate judge, this Court
considers whether the judge’s decision was (1) clearly erroneous or contrary to law, or (2) an
abuse of discretion. See generally, Turner, 781 F. App’x at 50 n.3; Williams v. Office of Dist.
Att’y Erie Cty., 751 F. App’x 196, 198 (3d Cir. 2018); Romero v. Ahsan, No. CIV.A. 13-7695
(FLW), 2015 WL 5455838, at *3 (D.N.J. Sept. 16, 2015); Rhett v. New Jersey, No. CIV.A.071310 (DRD), 2007 WL 1456199, at *1-2 (D.N.J. May 14, 2007). Under the first prong, the
movant bears the burden of showing that the magistrate judge misinterpreted or misapplied the
law. Romero, 2015 WL 5455838, at *3; Marks, 347 F. Supp. 2d at 149. Under the second
prong, “discretion is abused only where no reasonable man would take the view adopted by the
trial court.” Id.
Here, Mr. Washington has not argued that any of Judge Bongiovanni’s rulings denying
his motions for appointment of pro bono counsel were an abuse of discretion or “clearly
erroneous or contrary to law.” (See ECF No. 122). In carefully reviewing the record, the Court
finds that Judge Bongiovanni’s decisions to deny Mr. Washington’s requests for counsel were
fair, sensible, and consistent with the controlling law. She considered the Tabron factors for
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appointing pro bono counsel and concluded that such appointment was unwarranted in light of
the facts of this case. (See, e.g., ECF Nos. 10, 88).
Specifically, Judge Bongiovanni found that Mr. Washington did not demonstrate that his
case presents sufficiently complex legal issues to warrant appointment of counsel under the
second Tabron factor. (ECF No. 10 at 2). Judge Bongiovanni also noted that, “at least as of this
early stage of proceedings,” Mr. Washington appeared capable of representing himself without
counsel. (ECF No. 10 at 2-3). As such, she found that the first Tabron factor weighed against
appointing pro bono counsel as well.
This Court agrees with Judge Bongiovanni’s analysis of the Tabron factors in her May
2018 order denying Mr. Washington’s application for pro bono counsel and finds that she neither
made a clear error of law nor abused her discretion. Nothing in Mr. Washington’s present appeal
warrants a different decision here.
Further, the Third Circuit has emphasized that “appointment of counsel under § 1915(d) may be
made at any point in the litigation,” “even if it does not appear until trial (or immediately before
trial) that an indigent litigant is not capable of trying his or her case.” Tabron, 6 F.3d at 156-57.
Should the Court determine that appointment of pro bono counsel is appropriate at a later time, it
may make that decision sua sponte.
For the foregoing reasons, Plaintiff’s appeal is denied.
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THIS MATTER comes before the Court on pro se Plaintiff Randy Washington’s
(“Plaintiff”) appeal of orders entered by the Hon. Tonianne J. Bongiovanni, U.S.M.J., denying Mr.
Washington’s requests for the appointment of pro bono counsel, (ECF No. 122); and the Court
having carefully reviewed and taken into consideration the submissions of the parties, as well as
the arguments presented therein; and for good cause shown; and for all of the foregoing reasons,
IT IS on this 2nd day of November, 2020,
ORDERED that Plaintiff’s appeal, (ECF No. 122), is DENIED, and Judge
Bongiovanni’s rulings are AFFIRMED.
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.
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