The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This matter comes before the Court on an application by the
Plaintiff for the appointment of pro bono counsel pursuant to
28 U.S.C. § 1915. This Court has jurisdiction pursuant to
42 U.S.C. 2000e-5.
Plaintiff Ramonita Gonzalez ("Plaintiff") is a pro se plaintiff
who filed the instant Complaint on June 25, 2004 against the
Passaic County Probation, Mike Costabile, Dorothy Howell, Carol
Kopacz, John Krieger, Mary Stately, the Probation Association of
New Jersey, Peter Tortoreto and George Christie. The Complaint
alleges employment discrimination pursuant to Title VII of the
Civil Rights Act of 1964. See Compl. at ¶ 1.
On November 9, 2004, Plaintiff filed an application for pro
bono counsel. Thereafter, on January 24, 2005, the Probation
Association of New Jersey, George P. Christie and Peter Tortoreto
filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
The remaining Defendants filed an Answer on March 21, 2005.
Plaintiff was employed as a Probation Officer in the Child Support Unit of the Passaic Vicinage. See Pl.'s Ex. E at E-3.
On March 31, 2003, the Passaic Vicinage issued a Preliminary
Notice of Disciplinary Action to the Plaintiff alleging conduct
unbecoming a public employee and other sufficient cause in
violation of N.J.A.C. 4A:2-2.3(a)(6),(11). Id. at E-2. This
disciplinary action stemmed from allegations that the Plaintiff
"inappropriately involved herself in her child support case
thereby engaging in conduct unbecoming a pubic employee and
violating the Code of Conduct." Id. at E-3. According to the
Recommended Decision of Hearing Officer Nancy M. Mahony, Esq.,
("Hearing Officer Mahony") Plaintiff was transferred to the
Passaic Vicinage Child Support Unit in July of 2002. See id.
at E-4. At that time, the Plaintiff was told that her own
personal child support case against Mr. Curvey Thompson ("Mr.
Thompson") should be transferred to Bergen County to avoid any
conflict while she worked in the Passaic Vicinage of the Child
Support Unit. See id. This transfer, however, did not occur
until November of 2002.*fn1 See id.
Prior to the transfer, Carolyn Gibbons ("Ms. Gibbons") was
assigned as an Investigator to the Plaintiff's case. See id.
In November 2002, a fax was sent from the Passaic Child Support
Unit under the name of Ms. Gibbons but in the Plaintiff's
handwriting. See id. This fax was sent to Mr. Thompson's employer to
enforce a wage garnishment in the Plaintiff's child support case.
Hearing Officer Mahony found that "on November 12, 2002, Ms.
Gonzalez faxed the wage garnishment to the payroll department at
[Mr. Thompson's employer] with Ms. Gibbons' knowledge and
permission." Pl.'s Ex. E at E-10. Yet, Hearing Officer Mahony
also concluded that Plaintiff's "actions were conduct unbecoming
a public employee and exhibited actual or apparent impropriety."
Id. at E-12.*fn2 As a result, Hearing Officer Mahony
recommended that the Plaintiff receive a six month suspension
rather than termination. See id. at E-13.
Plaintiff alleges that after filing her appeal but prior to the
Recommended Decision of Hearing Officer Mahony, she "was
subjected to on-going acts of harassment which created a hostile
work environment." N.J. Charge of Discrimination, attached to
Compl. Further, Plaintiff charges that her "duties were reduced
and/or changed. I was issued write-ups for lateness." Id.
Plaintiff alleges that non-Hispanic, male workers who also
violated state codes were "issued less discipline." Id.
Plaintiff stated: "I believe that I have been discriminated
against because of my sex (Female), national origin (Hispanic) and retaliation in violation of Title VII of the Civil Rights Act
of 1965, as amended." Id.
Plaintiff specifically charges that the Probation Association
of New Jersey did not provide fair representation. See Compl.,
Attach. at 1. According to Plaintiff, because the Probation
Association of New Jersey decided not to represent her, she was
forced to hire her own private attorney to represent her during
her appeal and hearing. See id. She further charges that
Defendants George P. Christie and Peter Tortoreto informed her
"that I should resign with good standing because I had no chance
of saving my employment." Id. Plaintiff also claims that she
has been assigned "an all-Spanish caseload" in spite of the fact
that her supervisor is aware that while she is of Hispanic
origin, her "first and only language is English." Pl.'s Feb. 16,
2005 Letter at ¶ 4. For these reasons, Plaintiff filed the
instant action in this Court.
While Plaintiff secured the services of an attorney for her
disciplinary hearing and subsequent internal appeal, she now
claims that she can no longer afford or secure the services of an
attorney. See Pl.'s Appl. For Pro Bono Counsel, ¶ 3. According
to Plaintiff, she cannot afford an attorney to represent her in
the instant action. See id. Therefore, Plaintiff filed the
instant application for the appointment of pro bono counsel. The
Court will now address that application. DISCUSSION
I. Standard for the Appointment of Pro Bono Counsel to an
Indigent Civil Litigant
An indigent civil litigant does not possess either a
constitutional or a statutory right to appointed counsel. See,
e.g., Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997);
Montgomery v. Pinchak, 294 F.3d 492, 498-499 (3d Cir. 2002).
Nevertheless, district courts have been granted statutory
authority to request appointed counsel for indigent civil
litigants. See 28 U.S.C. § 1915(e)(1) (providing that "[t]he
court may request an attorney to represent any person unable to
afford counsel"). The Court of Appeals for the Third Circuit has
interpreted § 1915 as affording district courts "broad
discretion" to determine whether the appointment of counsel in a
civil case would be appropriate. See Tabron v. Grace,
6 F.3d 147, 153 (3d Cir. 1993). Moreover, the decision to appoint
counsel may be made at any point in the litigation, and may be
made by a district court sua sponte. See id. at 156.
While this Court has broad discretion in determining whether to
appoint counsel in a civil case, the Third Circuit has developed
a list of criteria to aid a district court when weighing the
appointment of counsel for indigent civil litigants.*fn3
See id. "As a threshold matter, a district court must assess whether the claimant's case has some arguable merit
in fact and law." Montgomery, 294 F.3d at 498-499 (citing
Tabron, 6 F.3d at 155 and Parham, 126 F.3d at 457).
The Third Circuit identified a number of factors that a
district court should consider when assessing a claimant's
request for counsel where the claimant has overcome the threshold
hurdle. See Montgomery, 294 F.3d at 499. These factors
include: (1) the plaintiff's ability to present his or her own
case; (2) the difficulty of the particular legal issues; (3) the
degree to which factual investigation will be necessary and the
ability of the plaintiff to pursue investigation; (4) the
plaintiff's capacity to retain counsel on his or her own behalf;
(5) the extent to which a case is likely to turn on credibility
determinations; and (6) whether the case will require testimony
from expert witnesses. See, e.g., Montgomery,
294 F.3d at 499; Tabron, 6 F.3d at 155-57. "This list of factors is not
exhaustive, but should serve as a guidepost for the district
courts." Parham, 126 F.3d at 457 (citing Tabron,
6 F.3d at 155). ...