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Davis v. Two Unknown Named Agents of the Federal Bureau of Investigation

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


November 5, 2007

JEREMY JOSEPH DAVIS, PLAINTIFF,
v.
TWO UNKNOWN NAMED AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.

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

OPINION AND ORDER

This matter having come before the Court by way of plaintiff's third motion for the appointment of pro bono counsel, filed on October 2, 2007, Docket Entry No. 17;*fn1

and, on May 7, 2007, the plaintiff having filed an initial motion for the appointment of pro bono counsel, Pl. First Mot. Pro Bono Counsel [Docket Entry No. 2];*fn2

and, on July 10, 2007, the plaintiff having filed a second motion for the appointment of pro bono counsel, Docket Entry No. 11, and a submitted a letter dated July 18, 2007, regarding (1) his request for appointment of counsel; and (2) motion for the production of documents and default, Docket Entry No. 12;*fn3

and the Honorable Faith S. Hochberg having denied the plaintiff's first motion for the appointment of pro bono counsel without prejudice because she found that: (1) the plaintiff's claims did not involve complex issues of law or fact; (2) the plaintiff's incarceration does not impede his ability to conduct discovery in preparation for trial; (3) the plaintiff is articulate and able to prepare and present his case coherently; (4) expert testimony is not essential to the presentation of plaintiff's case; (5) it is not apparent the plaintiff's case will rest on credibility determinations; and (6) the only fact weighing in favor of appoint the plaintiff counsel is his indigence, Opinion, May 16, 2007 at 3-4 [Docket Entry No. 3];

and the Court having considered the plaintiff's instant application;*fn4

and the Court noting that it has broad discretion under 28 U.S.C. § 1915 to appoint pro bono counsel to represent indigent litigants; see Parham v. Johnson 126 F.3d 454, 456-57 (3d Cir. 1997);

and it appearing that a court may grant a properly filed application for the appointment of pro bono counsel if the plaintiff's claims have some "merit in fact and law," Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002) and upon consideration of 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 investigation;

4. the plaintiff's capacity to retain counsel on his 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,

id.; Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993) (also known as the Tabron factors);

and the Court assuming for the purposes of this application that plaintiff's claims are meritorious;

and the Court having considered the instant application, the Tabron factors, the Opinions dated May 16, 2007 and August 2, 2007, and finding that pro bono counsel is not warranted;*fn5

and for the reasons set forth in the those Opinions and Orders, and as set forth herein;

and the Court having resolved the plaintiff's motion for the production of documents,

see Order dated June 8, 2007 [Docket Entry No. 7];

and the Court finding that the plaintiff's request for default is premature as there is no proof that the defendants have been served with the Complaint and hence they cannot be held in default;

IT IS on this 5th day of November, 2007

ORDERED that the plaintiff's application for appointment of pro bono counsel [Docket Entry No. 17] is denied;

IT IS FURTHER ORDERED that the plaintiff's request that the Clerk enter default against any defendant is denied; and

IT IS FURTHER ORDERED that the Clerk of the Court shall send the plaintiff a copy of the Procedural Guide for Pro Se Litigants.


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