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Malloy v. Keane

October 10, 2007

MALLOY
v.
KEANE, ET AL



The opinion of the court was delivered by: Patty Shwartz United States Magistrate Judge

Honorable Patty Shwartz United States Magistrate Judge U.S. Post Office & Courthouse Bldg. Federal Square, Newark, NJ 07101 (973) 645-6596

LETTER OPINION & ORDER

Dear Litigant:

The Court is in receipt of plaintiff Joseph Malloy's request for appointment of pro bono counsel under 28 U.S.C. § 1915(e)(1), filed September 11, 2007. For the reasons set forth below, the plaintiff's request is denied.

BACKGROUND

On May 30, 2007, the plaintiff submitted a Complaint and an application to proceed in forma pauperis ["IFP"]. On August 16, 2007, the plaintiff's application to proceed IFP was denied without prejudice due to incompleteness, and the action was administratively terminated due to his failure to submit the filing fees. See Order, dated August 16, 2007. After plaintiff submitted an application to proceed IFP, the Court reopened the case, granted the plaintiff's request to proceed IFP, and his Complaint was filed. See Order, dated August 29, 2007.

In the Complaint, plaintiff alleges that, on June 6, 2005, defendants searched his residence pursuant to a search warrant and allegedly seized personal items falling outside the scope of the warrant, thereby violating his federal civil rights and state law. See Compl. at ¶ 4. Plaintiff also alleges that defendant prosecutor committed perjury by making contradictory statements under oath regarding defendants' alleged seizure of his personal items.

On September 11, 2007, Plaintiff filed this application for the appointment of counsel. See Docket Entry No. 9. In his application, Plaintiff argues that he is entitled to counsel because:

(1) his claim has merit; (2) he is incarcerated and therefore lacks the ability to present an efficient and effective case; (3) the legal issues, including rules of evidence and discovery, are complex and he lacks the understanding to present his case; (4) factual investigation may be necessary to learn about defendants' past; (5) the case will turn on credibility determinations; and (6) he is unable to afford or obtain counsel. See App. for Counsel at ¶ 3.

DISCUSSION

There is no constitutional or statutory right to appointed counsel for indigent civil litigants. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). Nonetheless, Congress has afforded district courts broad discretion in determining whether to appoint counsel for indigent civil litigants. See 28 U.S.C. § 1915 (e)(1); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). The Court must first consider, "as a threshold matter, the merits of the plaintiff's claim." Tabron, 6 F.3d at 155. If the Court determines that the plaintiff's claim has arguable merit, then the Court should consider the following additional factors:

(1) the plaintiff's ability to present his case;

(2) the difficulty of the particular legal issues;

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


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