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GONZALEZ v. PASSAIC COUNTY PROBATION

August 24, 2005.

RAMONITA GONZALEZ, Plaintiff,
v.
PASSAIC COUNTY PROBATION, MIKE COSTABILE, DOROTHY HOWELL, CAROL KOPACZ, JOHN KRIEGER, MARY STATELY, PROBATION ASSOCIATION OF NEW JERSEY, PETER TORTORETO and GEORGE CHRISTIE, Defendants.



The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District

OPINION

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.

  PROCEDURAL HISTORY

  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.

  FACTS

  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. See id.

  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). ...


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