UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
September 10, 2008
WILLIAM B. SHEPHERD, PLAINTIFF,
JOHN AMBROSINO ET AL., DEFENDANTS.
The opinion of the court was delivered by: John J. Hughes United States Magistrate Judge
This matter having come before the Court upon Application by pro se Plaintiff William Shepherd ("Plaintiff"), currently incarcerated at the East Jersey State Prison, located in Rahway, New Jersey, proceeding in forma pauperis, to appoint pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1) [dkt. entry no. 16]; and Plaintiff stating that because he is incarcerated he is unable to provide additional discovery material and receive essential extrinsic evidence to present his case (Pl.'s Appl. at p.3); and Plaintiff also stating that he is unable to both conduct an investigation and afford an expert witness to testify on his behalf, Id.; and Plaintiff further stating that he is unfamiliar with civil law, practice and procedure and cannot afford to retain counsel to assist him, Id.;and the Court noting that Tabron v. Grace, 6 F.3d 147, 155-57 (3d Cir. 1993), articulates the criteria for the appointment of pro bono counsel; and Tabron providing that if the Court determines that the claim does have "arguable merit in fact and law," id. at 155, then additional factors should be considered including:
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 the 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.
Id. at 155-57; and the Court noting, pursuant to Tabron, that "district courts [have] broad discretion to request an attorney to represent an indigent civil litigant" Id. at 153; and for the purposes of this Application, the Court assuming that Plaintiff has satisfied the threshold requirement of presenting a meritorious claim; and, specifically, Plaintiff alleging that his due process right to a fair trial was violated when Detective Ambrosino gave false testimony under oath before the Middlesex County Grand Jury on February 9, 2006 and withheld exculpatory evidence from the prosecutor. (See dkt. entry no. 1); and the Court finding that Plaintiff's case alleging a violation of his right to a fair trial is relatively straightforward, not factually complex and may be subject to disposition by dispositive motion; and the Court further finding that Plaintiff failed to demonstrate that extensive discovery is required; and the Court noting that Plaintiff will be able to obtain the necessary discovery through interrogatories and depositions; and the Court finding that based on Plaintiff's contentions, denial of pro bono counsel would not create the likelihood that Plaintiff would incur substantial prejudice or result in a violation of his due process rights; and the Court further finding that the concerns raised by Plaintiff do not rise to the "special circumstances" that would warrant the appointment of counsel discussed in Tabron, 6 F.3d at 155; and the Court planning to assess Plaintiff's continued ability to present his case; and the Court noting that should the need for counsel arise, it will appoint one sua sponte; and the Court having reviewed Plaintiff's Application; and the Court having considered the matter pursuant to FED. R. CIV. P. 78; and good cause having been shown;
IT IS on the 10th day of September, 2008, ORDERED that Plaintiff's Application for pro bono counsel [dkt. entry no. 16] is DENIED without prejudice.
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