United States District Court, D. New Jersey
June 9, 2005.
Montclair State University.
The opinion of the court was delivered by: RONALD HEDGES, Magistrate Judge
LETTER-OPINION AND ORDER ORIGINAL FILED WITH CLERK OF THE COURT
This matter comes before me on plaintiff's application for
appointment of pro bono counsel. I have considered the papers
submitted in support of this application. There was no oral
argument. See Rule 78.
Plaintiff Esteban E. Sarmiento ("Plaintiff") is an
anthropologist with a Ph.D. in Physical Anthropology who has taught at numerous college and universities,
has published many articles and has much research experience. In
October 2001, plaintiff applied for a tenure-track position in
biological anthropology at Montclair State University
("Defendant") for which he allegedly was well-qualified.
Plaintiff claims that defendant failed to give him an interview
or hire him due to his race, color, national origin, and age.
Plaintiff contends that the candidate who was hired for the
position was a white woman with less education, little teaching
experience, a poor publication record, and limited writing
experience. Plaintiff filed this action pursuant to Title VII, §
1981, Age Discrimination in Employment Act (ADEA), and the New
Jersey Law Against Discrimination (NJLAD). The § 1981, ADEA, and
NJLAD claims were dismissed and the Title VII claim remains. He
seeks appointment of counsel.
Indigent litigants have no right to appointed counsel in civil
cases. Tabron v. Grace, 6 F. 3d 147, 153 (3d Cir. 1993), cert.
denied, 510 U.S. 1196 (1994). District courts are given the
authority to appoint counsel to represent indigent litigants in
meritorious civil cases. 29 U.S.C. § 1915(e). There are many
factors which must be considered in making a decision to appoint
counsel. Initially, there is the threshold issue of whether the
plaintiff's claim has some merit in fact and law. Tabron,
6 F.3d at 155. If the claim has "some merit in fact and law," the
court should then consider other factors such as: (1) plaintiff's
ability to present his case; (2) the complexity of the legal
issues; (3) the extent of factual discovery, and 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 plaintiff can attain and afford counsel on his
own behalf. 6 F.3d at 155-56; Parham v. Johnson, 126 F.3d 454,
457 (3d Cir. 1997). This list of factors is not exhaustive.
Parham, 126 F.3d at 457.
In his application for appointment of counsel, plaintiff states
that he is unemployed and unable to afford an attorney. Plaintiff
has not demonstrated indigent status or been granted application
to proceed in forma pauperis. However, for the purposes of
this analysis, I will assume that plaintiff is indigent and
cannot afford counsel.
I. Whether Plaintiff's Claim Has "Some Merit in Fact and Law"
The merits in fact and law of the plaintiff's claim must be
considered as a threshold matter. See Tabron, 6 F.3d at 155.
Plaintiff's § 1981, ADEA and NJLAD claims have been dismissed
based on the Eleventh Amendment. However, I am persuaded that
plaintiff's remaining Title VII claim has some merit in fact and
II. Tabron/Parham Factors
A. Plaintiff's Ability to Present His Case
Plaintiff is a well-educated man with a Ph.D. He has authored
many articles and has taught in many universities and colleges.
He has been a research associate at The Museum of Natural History
since 1985. He is very literate and has not provided any
information that he lacks the resources necessary to present his
case effectively. I am unable at this time to see how plaintiff
may be rendered incapable of effectively presenting his case.
Therefore, this factor weighs against appointment of counsel.
B. Complexity of Legal Issues
Courts should be more inclined to appoint counsel if the legal
issues presented are complex. See Tabron, 6 F.3d at 156. This
case is based on a discrimination claim. I see no evidence in the record that would suggest that plaintiff is
unable to comprehend the issues involved and to present these
effectively. I am not persuaded that the legal issues are
particularly complex and would require appointment of counsel.
This factor therefore weighs against appointment of counsel.
C. Extent of Factual Investigation
The facts are not complicated. Plaintiff is not confined and is
capable of securing the documents which would seem to be required
to prove the elements of his case. Consequently, this factor
weighs against appointment of counsel.
D. Extent to Which Case May Turn on Credibility
Although credibility determinations may be important, there is
more required in order to find this factor for appointment of
counsel. "Courts should consider whether the case [will be]
solely a swearing contest." Parham, 126 F.3d at 454. Although
some questions of fact may rest on credibility, there would
appear to be documents that bear on factual determinations. Such
documents include those regarding the hiring practices of
defendant, the qualifications needed for the position in issue
and the qualifications of the plaintiff. Therefore, this factor
weighs against appointment of counsel.
E. Whether Expert Testimony Will Be Required
In the present case, expert testimony will not be required.
Thus, this factor weighs against appointment of counsel.
F. Whether the Plaintiff Can Attain and Afford Counsel on His
The plaintiff states that he is "at the moment unable to afford
an attorney." The court should not appoint counsel if litigant
could afford or easily obtain counsel, yet has made no effort to
retain an attorney. See Tabron, 6 F.3d at 157. This does not
seem to be the case in this instance. Therefore, this factor weighs in favor of appointment
Although I appreciate plaintiff's representation that he cannot
afford counsel, I am not persuaded that he would be unable to
present his case effectively, that the legal issues involved are
too complex, that factual discovery would be extensive, or that
credibility determinations or expert testimony require appointed
For the reasons set forth above, plaintiff's application for
pro bono counsel is DENIED without prejudice.
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