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Scott v. Marriott Residence Inn

November 7, 2005


The opinion of the court was delivered by: Joel B. Rosen United States Magistrate Judge


MITCHELL H. COHEN COURTHOUSE 1 John F. Gerry Plaza, Room 206 CAMDEN, NJ 08101-0887 (856) 757-5446

Norman L. Scott 211 Keats Drive Sicklerville, NJ 08081


Dear Mr. Scott:

I. Introduction

Presently before the court is the plaintiff's application for the appointment of legal counsel pursuant to 28 U.S.C. §1915(e). The plaintiff is not incarcerated and has been granted leave to proceed in forma pauperis.

The plaintiff initiated this action pursuant to the Civil Rights Act of 1866 (as modified in 1991), 42 U.S.C. § 1981, and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-12, et seq., alleging that the defendant, Innkeepers Hospitality Management ("Innkeepers"), deprived him of his § 1981 and NJLAD rights by discriminating against him on the basis of his race, subjecting him to a hostile work environment on the basis of his race, and failing to take proper remedial actions to resolve the discrimination.

After careful consideration of the plaintiff's submissions and other record documents and for the reasons noted below, the plaintiff's motion for appointment of counsel shall be DENIED.

II. Factual and Procedural History

The facts as discerned from the plaintiff's complaint are as follows. The defendant, Innkeepers, hired the plaintiff, an African-American male, as a Night Auditor on or about June 4th, 2002. (Compl., ¶¶ 1-5).

The plaintiff alleges that during the course of his employment, the defendant discriminated against him on the basis of his race, specifically in regards to training, rate of pay, discipline and supervision. (Id. at ¶ 6). The plaintiff also alleges that through disparate treatment, interference with his personal property, and denial of necessary training and equipment on account of his race, the defendant subjected the plaintiff to a hostile work environment. (Id. at ¶ 7). Additionally, the plaintiff alleges that the defendant, upon notification of these problems, failed to provide a remedy. This failure caused the plaintiff to suffer loss of earning capacity, loss of benefits, pain and suffering, emotional upset, mental anguish and loss of life's pleasures. (Id. at ¶¶ 8-10).

On December 2, 2004, the plaintiff filed the instant complaint alleging that the defendant's acts and omissions violated his rights under 42 U.S.C. § 1981 and the NJLAD. The defendant denies these allegations and avers, inter alia, that it terminated the plaintiff for legitimate non-discriminatory reasons.*fn1 By order dated January 26, 2005, the district court granted the plaintiff in forma pauperis status. On May 23, 2005, the plaintiff submitted an application for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). In support of his application for appointment for counsel, the plaintiff contends that he is unable to afford an attorney. The plaintiff further contends that he is worried that "opposing counsel may try something unethical in the instant matter."

The defendant was served with process on February 11, 2005, and answered with separate defenses on March 3, 2005.

III. Analysis

A. Appointment of Counsel Under 28 U.S.C. §1915(e)

The court may, pursuant to §1915(e), request an attorney to represent an indigent plaintiff in a civil action. Section 1915 provides in relevant part that:

(1) [t]he court may request an attorney to represent any person unable to afford counsel. (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-(A) the allegation of poverty is untrue; or (B) the action or appeal - (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

§1915(e)(emphasis added). However, the appointment of counsel under §1915(e) is a privilege, not a statutory or constitutional right of the litigant. Purnell v. Lopez, 903 F. Supp. 863, 864 (E.D. Pa. 1995). Moreover, a court's power to appoint counsel pursuant to §1915(e) lies in the sole discretion of the court. Parham v. Johnson,126 F.3d 454, 457 (3d Cir. 1997); see also, Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). Appointment of counsel may be made at any point during the litigation or by the court sua sponte. Tabron, 6 F.3d at 156. In exercising its discretion under §1915(e), the court is required to determine whether the claim has "some merit in fact and law" as a preliminary matter. Parham, 126 F.3d at 457.

If, as a preliminary matter, the court finds the action is not frivolous and has merit, then several factors are taken into consideration:

(1) plaintiff's ability to present his or her own case;

(2) the complexity of the legal issues;

(3) the degree to which factual investigation will be necessary and the ability of the plaintiff to ...

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