Opinion
Civil Action No. 17-cv-7136 (SDW)(SCM)
12-03-2018
Re: D.E. 53, Motion to Appoint Pro Bono Counsel Roy Depack, Jr. v. John Esmorado, et al.
Chambers of STEVEN C. MANNION United States Magistrate Judge LETTER OPINION-ORDER Dear Litigants:
This matter comes before the Court upon review of Plaintiff Roy J. Depack's ("Mr. Depack") Motion to Appoint Pro Bono Counsel. The Court has reviewed Mr. Depack's Motion and for the reasons set forth herein it is denied.
(ECF Docket Entry No. ("D.E.") 53, Pl.'s Mot.).
District courts are granted broad discretion to appoint attorneys to represent indigent civil litigants, but civil litigants possess neither a constitutional nor a statutory right to appointed counsel. Moreover, though Congress has empowered district courts to "request" counsel for civil litigants, courts cannot "require" an unwilling attorney to serve as counsel.
28 U.S.C. § 1915 (d), (e)(1),
Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Parham v. Johnson, 126 F.3d 454, 456-67 (3d Cir. 1997)).
Id. (citing 28 U.S.C. § 1915 (e)(1)); see also Christy v. Robinson, 216 F. Supp. 2d 398, 406 n. 16 (D.N.J. 2002) (citing Mallard v. United States Dist. Court for Southern Dist. of Iowa, 490 U.S. 296, 301-02 (1989)).
This Court must therefore "take note of the significant practical restraints on the district courts' ability to appoint counsel: . . . 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 v. Grace, 6 F.3d 147, 157 (3d Cir. 1993).
When evaluating a request for the appointment of pro bono counsel, a district court should first determine whether the plaintiff's claim "has arguable merit in fact and law." The Third Circuit has articulated an analytical framework that district courts must use in exercising their discretion. The analysis begins with a threshold assessment of the merits of the case.
Id. at 155.
See Montgomery v. Pinchak, 294 F.3d 492 (3d Cir. 2002); Parham v. Johnson, 126 F.3d 454 (3d Cir. 1997); Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993).
Montgomery, 294 F.3d at 498-99 (citing Tabron, 6 F.3d at 155; Parham, 126 F.3d at 457).
If the court first finds "some arguable merit in fact and law," then it must go on to weigh a series of considerations known as the Tabron post-threshold factors. These factors include: (1) the plaintiff's ability to present his case; (2) the complexity of the legal issues involved; (3) the extent of factual discovery and the plaintiff's ability to investigate and to comply with complex discovery rules; (4) the extent to which the case may turn on credibility determinations; (5) whether expert testimony will be required; and (6) whether the plaintiff can afford counsel on his or her own behalf.
Id. at 499.
Tabron, 6 F.3d at 156; see also Parham, 126 F.3d at 461.
For the purpose of evaluating these threshold factors, the Court assumes "solely for the purpose of this Application" that Mr. Depack's case has "some arguable merit in fact and law." The Court, however, need not undertake a detailed analysis of this point because application of the Tabron post-threshold factors overall weighs against appointment of pro bono counsel at this time.
Montgomery, 294 F.3d at 499.
1. Mr. Depack's Ability to Present His Case
The first factor has been identified as "perhaps the most significant." For this factor the Court considers Mr. Depack's "education, literacy, prior work experience, and prior litigation experience...." As additional guidance, the Third Circuit has noted that courts should consider Mr. Depack's ability to present his case "[i]n conjunction with . . . the difficulty of the particular legal issues."
Id. at 501.
Id. (citations omitted) (citing Tabron, 6 F.3d at 156).
Tabron, 6 F.3d at 156; see also Montgomery, 294 F.3d at 502.
Mr. Depack does not address this factor in his Motion, so the Court is unfamiliar with his educational history and prior work or litigation experience. However, his numerous filings with the Court thus far reflect literacy and a general understanding of the litigation process. For example, without the aid of counsel, Mr. Depack has already drafted and amended his complaint, responded to Defendant's motions, objected to the Court's scheduling order, and filed motions for recusal and requesting pro bono counsel. Therefore, the first Tabron factor weighs against appointment.
2. The Legal Complexity of the Case
The second Tabron factor concerns the complexity of the particular legal issues. Again, Mr. Depack's short argument in support of his Motion does not address this second Tabron factor. However, in looking to Mr. Depack's Complaint and Amended Complaint, the Court finds that Mr. Depack's factual claims are easy to understand and the legal issues involved are relatively straightforward. Thus, the second Tabron factor also weighs against appointment.
3. The Degree to Which Factual Investigation Will be Necessary
The third Tabron factor is the degree to which factual investigation will be necessary and Mr. Depack's ability to pursue an investigation. Generally, district courts give weight to an incarcerated individual whose confinement limits his ability to conduct discovery and investigate facts. Here, however, Mr. Depack's confinement will not substantially affect his ability to litigate this case.
Tabron, 6 F.3d at 253.
Mr. Depack has been intimately involved with the events surrounding and leading up to the filing of the Complaint. In fact, Mr. Depack's Amended Complaint outlines the evidence he already possesses and two witnesses he plans to call on for trial. Nothing in the record indicates that Mr. Depack's pro se or prisoner status will inhibit him from conducting discovery or reaching his witnesses. Therefore, the third Tabron factor weighs against appointment.
4. The Extent to Which the Case is Likely to Turn on Credibility Determinations
The fourth Tabron factor is the extent to which the case is likely to turn on credibility determinations. Because "it is difficult to imagine a case that does not" rely, in some measure, on witness credibility, courts look to whether the case at hand will become "solely a swearing contest." Mr. Depack has not addressed this factor, but based on the initial pleadings, it does not appear to be a swearing contest. Further, because the factors overall weigh against appointment, it is unnecessary to further evaluate the potential credibility issues.
Parham v. Johnson, 126 F.3d 454 (3d Cir. 1997).
5. Whether the Case will Require Testimony from Expert Witnesses
The fifth Tabron factor is whether the case will require testimony from expert witnesses. At this juncture of the case, it is unclear if expert testimony will be required. Nevertheless, it seems unlikely, given the nature of Mr. Depack's allegations, that his claims would require expert testimony. Thus, the fifth Tabron factor currently weighs against appointment.
6. Mr. Depack's Capacity to Retain Counsel on His Own Behalf
Finally, the sixth Tabron factor is Mr. Depack's capacity to retain counsel on his own behalf. The Court acknowledges that Mr. Depack's application to proceed in forma pauperis was granted, and that he is an indigent prisoner. However, these facts alone are not enough to justify an order of appointment. Indigency alone does not warrant the appointment of counsel absent satisfaction of other Tabron post-threshold factors. Therefore, the sixth Tabron factor weighs against appointment.
See Christy, 216 F. Supp. 2d at 410 (D.N.J. 2002) (denying application for pro bono counsel where indigency was the only one of the six factors weighing in favor of appointment of counsel); see also Bragg v. Patterson, 2015 WL 7296129, at *7 ("Plaintiff's indigency, however, is not sufficient to warrant counsel in and of itself. Many pro se plaintiffs are indigent, yet are denied pro bono counsel. The Court considers this factor to be neutral. The remainder of the factors, however, weigh against the appointment of counsel at this time.").
The Court is, as always, sympathetic to any disadvantages of the parties that come before it. Accordingly, the Court will closely monitor the considerations raised by Mr. Depacks Motion for Pro Bono Counsel throughout case management and, as the case moves forward, it may exercise its discretion to appoint counsel sua sponte should any of the above discussed considerations change.
See Tabron, 6 F.3d at 156; Christy, 216 F. Supp. 2d at 406. --------
As the Tabron factors weigh against appointment at this time, the Court will deny Mr. Depack's motion.
IT SO ORDERED.
/s/
Honorable Steve Mannion, U.S.M.J.
United States District Court,
for the District of New Jersey
phone: 973-645-3827
12/3/2018 9:47:56 AM Original: Clerk of the Court
Hon. Susan D. Wigenton, U.S.D.J.
cc: All parties Roy J. Depack, Jr.
Hudson County Jail
30 Hackensack Ave.
Kearny, NJ 07032