United States District Court, D. New Jersey
September 12, 2005.
State of New Jersey et al.
The opinion of the court was delivered by: PATTY SHWARTZ, Magistrate Judge
This matter is before the Court on plaintiff's application for
appointment of pro bono counsel pursuant to
28 U.S.C. § 1915(e)(1). For the reasons set forth below, plaintiff's
application is denied.
FACTS AND PROCEDURAL HISTORY
On March 14, 2005, the pro se plaintiff, Richard R.
Kreimer, filed a Complaint alleging that the defendants violated
his civil rights.*fn1 Specifically, plaintiff alleged that
New Jersey Transit and the City of Summit violated his civil
rights by the manner in which he was treated at various train
stations in the State of New Jersey from August 2004 through
Plaintiff alleges that on August 11, 2004, August 12, 2004,
August 18, 2004, August 30, 2004, December 16, 2004, and March 5, 2005, he had encounters
with New Jersey Transit personnel during which he was informed
that homeless individuals were not welcome and that he was
loitering and trespassing on private property. Plaintiff also
alleges that on an unspecified date in September 2004, October 2,
2004, and November 2, 2004, he had encounters with Summit Police
Officers at the Summit, New Jersey train station and park.
Similar to the incidents with New Jersey Transit, plaintiff
claims he was informed that homeless individuals were not welcome
and that he was loitering and trespassing on private property.
The case was originally assigned to the Honorable Dickinson R.
Debevoise, was reassigned to the Honorable William H. Walls, and
then reassigned again to the Honorable Katharine S. Hayden. On
May 3, 2005, Judge Hayden granted plaintiff's application for
leave to proceed in forma pauperis under 28 U.S.C. § 1915
and ordered the clerk to issue summons and serve the complaint,
summons, and order upon the defendants. (See Order on
Application to Proceed Without Prepayment of Fees dated May 3,
2005.) Subsequently, plaintiff filed this Application for Pro
Bono Counsel on August 18, 2005. In support of his application,
plaintiff argues that his case presents constitutional issues and
refers to the fact that the Honorable H. Lee Sarokin made the
"same appointment of counsel to plaintiff in 1989 or 1990."
(See Application for Pro Bono Counsel at 2.)
There is no constitutional or statutory right to counsel for
civil litigants. Parham v. Johnson, 126 F.3d 454, 456-57 (3d
Cir. 1997). District Courts, however, have broad discretion under
Section 1915 to appoint pro bono counsel to represent an
indigent litigant. See Id.; Tabron v. Grace, 6 F.3d 147,
158 (3d Cir. 1993).
When presented with an application for the appointment of pro
bono counsel in a civil case, the Court must first consider
whether or not the plaintiff's claims have some "merit in fact
and law." Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir.
2002). If the case has merit, then the Court should consider the
following non-exhaustive list of factors:
1. the plaintiff's ability to present his 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
4. the plaintiff's capacity to retain counsel on his
5. the extent to which a case is likely to turn on
credibility determinations; and
6. whether the case will require testimony from
Montgomery, 294 F.3d at 499; Tabron, 6 F.3d at 155-57.
Assuming arguendo that his lawsuit is meritorious, the Court
has considered the above factors and determined that plaintiff is
not entitled to appointment of counsel. First, the Court finds that plaintiff is able to present his own case. The Court
has "consider[ed] the plaintiff's education, literacy, prior work
experience, . . . prior litigation experience," and his
understanding of English. See Tabron, 6 F.3d at 156. Though
the Court lacks specific information concerning the plaintiff's
education, plaintiff's submissions in this case and his prior
involvement as a plaintiff in other cases reflect that he is
literate and able to articulate the basis of his claim.*fn2
Second, there is nothing before the Court to show the plaintiff
has attempted to secure counsel. Even if the Court accepts that
he currently lacks the means to retain counsel, the Court is
mindful that appointed counsel is a scarce resource. See
Tabron, 6 F.3d at 157. Therefore, indigent plaintiffs must make
some effort to attempt to hire counsel. The civil rights statute
provides one method of encouraging counsel to take on cases for
indigent clients. Specifically, the civil rights statute allows a
prevailing party to receive attorney's fees. This provision
provides an incentive for attorneys to accept civil rights cases.
Plaintiff has not shown he has attempted to reach out to counsel,
including the attorneys he states represented him in his earlier
case. See Kreimer, 958 F.2d 1242. Given the scarcity of
resources, this experienced litigant must make an effort to
secure counsel before seeking appointed counsel.
Moreover, the other Tabron factors do not weigh in favor of
appointing counsel at this time.*fn3 The legal issue is
whether New Jersey Transit and/or the City of Summit violated
plaintiff's civil rights. The legal principles governing such
civil rights claims are well established. In addition, the
plaintiff will have access to discovery and will be able to
conduct factual investigation. Finally, there is nothing before
the Court to indicate the case will likely turn on credibility
determinations or will require expert testimony. As a result,
appointment of counsel is not warranted.
For all of the foregoing reasons, plaintiff's application
requesting appointment of counsel is denied without prejudice.
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