Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dorko v. White

October 6, 1998


The opinion of the court was delivered by: Joel A. Pisano United States Magistrate Judge



Before the Court is Plaintiff's application for appointment of counsel. Defendant has not filed opposition, and the Court decides the matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, Plaintiff's application is denied.


At 3:15 a.m. on March 29, 1995, a Somerville police officer pulled over a car that had just made an illegal right turn at a red traffic light. The car sped away before the investigative traffic stop was complete. The officer gave chase and later ascertained through investigation that the driver had been Russell Dorko. Several months later police arrested Dorko and charged him with motor vehicle offenses and eluding a police officer. Dorko was convicted in January 1996 of second-degree eluding in the Superior Court of New Jersey, Somerset County. The jury also found Dorko guilty of third-degree eluding. A person who, while operating a motor vehicle, flees or attempts to elude a police officer commits the crime of eluding in the third degree. See N.J.S.A. 2C:29-2(b). If he also "creates a risk of death or injury to any person," then he commits the same crime in the second degree. See id.

Dorko appealed his conviction and the appellate division concluded that there were "substantial grounds for reversal" of the second-degree eluding conviction. See State v. Dorko, 298 N.J. Super. 54, 61 (App. Div. 1997). Essentially, the court held that the trial court improperly instructed the jury as to the elements of second-degree eluding. See id. at 59-61. The appellate division had no doubt that the jury properly convicted Dorko of third-degree eluding and, thus, remanded the matter for either resentencing on the third-degree conviction or a new trial as to second-degree eluding. See id. at 61. It appears from the record that the state did not retry Dorko for second-degree eluding and that he is currently serving his sentence for the third-degree conviction.

Plaintiff Dorko then commenced this action pursuant to 42 U.S.C. § 1983, claiming that a number of individuals and entities conspired to deprive him of a fair trial. Specifically, Dorko alleged that Defendant Timothy Van Hise destroyed exculpatory tape recordings and police reports. In March 1998, Judge Walls dismissed the complaint without prejudice because Dorko's claims would impermissibly call into question the third-degree eluding conviction. See Judge Walls's Letter Order, June 10, 1998, at 3-4 (citing Heck v. Humphrey, 512 U.S. 477 (1994)). Pursuant to the court's instructions and in order to avoid the strictures presented by Heck v. Humphrey, *fn1 Dorko filed a "Request for Reconsideration and Amended Complaint" that did not call into question his remaining conviction.

Judge Walls concluded on June 10, 1998, that Dorko's newest filing did not call into question his conviction for third-degree eluding. The court, however, instructed Dorko to file an amended complaint that comported with federal pleading rules and provided a short and plain statement of his claims against Van Hise and the Somerset County Prosecutor's Office. On July 8, 1998, Dorko filed his amended complaint.

The complaint alleges that Van Hise destroyed "relevant taped transmission recordings, and/or written Police reports that summarily would have shown that the plaintiff's only acts of eluding did not create a risk of death or injury . . . ." (Am. Compl., Statement of Claims, ¶ 1) Plaintiff Dorko also alleges that the Somerset County Prosecutor's Office "deliberately and maliciously suppressed said material in order to secure a Second Degree Conviction . . . ." (Am. Compl., Statement of Claims, ¶ 2) Essentially, Plaintiff accuses Van Hise and the prosecutor's office of the same misconduct, namely destruction and suppression of exculpatory evidence.

Also on July 8, 1998, Plaintiff filed an application for appointment of counsel, pursuant to 28 U.S.C. § 1915(d).


A plaintiff in a civil suit has neither a constitutional nor a statutory right to counsel. A court, however, has the discretionary authority to appoint counsel to represent an indigent plaintiff under 28 U.S.C. § 1915 (d). See Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981). When deciding whether to appoint counsel under Section 1915, the Court must be persuaded that the plaintiff's claim has some merit in law and fact. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). If it finds the plaintiff's claim has merit, the Court must then weigh a variety of factors to decide whether it is appropriate to appoint counsel.

According to Tabron, the district court has broad discretion in deciding whether to grant a motion for appointment of counsel, pursuant to 28 U.S.C. § 1915 (d). See Tabron, 6 F.3d at 153. As a threshold matter, the Tabron guidelines state that the case must have arguable legal and factual merit. See id. at 155. If the court finds that the indigent plaintiff's claim has arguable merit in law and fact, the court then examines a number of additional factors such as the plaintiff's ability to present the case, the complexity or degree of difficulty of the legal issues involved, the degree to which factual investigation will be required and the ability of the plaintiff to pursue such investigation, and the extent to which the case will turn on credibility determinations and experts. See id. at 156. Finally, the court should consider any factors weighing against appointing counsel, the limited supply of competent lawyers willing to undertake such representation without compensation, and the value of lawyers' time. See id. at 157.



Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.