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Hennessey v. Atlantic County Dept. of Public Safety

October 22, 2008


The opinion of the court was delivered by: Hillman, District Judge


This matter is before the Court on appeal of the Order entered by the Honorable Joel S. Schneider, U.S.M.J., denying Plaintiff's motion for appointment of pro bono counsel. For the reasons expressed below, Magistrate Judge Schneider's Order will be affirmed.


On January 12, 2006, pro se Plaintiff, Frank T. Hennessey, along with several other prisoner plaintiffs*fn1 filed a complaint against defendants alleging unconstitutional conditions of confinement at the Atlantic County Justice Facility.*fn2 By Order entered September 18, 2006, the Court granted plaintiffs' application for appointment of counsel and shortly thereafter Gregg L. Zeff, Esquire, was appointed as pro bono counsel.*fn3

Mr. Zeff subsequently filed a motion to withdraw as counsel for Hennessey. Mr. Zeff stated that he and Hennessey disagreed over the method and manner in which the case should proceed. Magistrate Judge Schneider found that the alleged difference of opinion in litigation strategy would prevent Mr. Zeff from properly representing Hennessey in this case. Magistrate Judge Schneider further found that it was no longer appropriate to appoint counsel to represent Hennessey. Based on the Court's further understanding of the background of the case and plaintiffs' claims, Hennessey's submissions to the Court, and Hennessey's pro se experience litigating cases in federal court, Magistrate Judge Schneider determined that Hennessey is capable of representing himself in this lawsuit. By Order entered October 2, 2007, Magistrate Judge Schneider granted Mr. Zeff's motion to withdraw as Hennessey's court-appointed pro bono counsel and reinstated Hennessey as a pro se litigant.

Hennessey filed a motion for reconsideration of the Court's October 2, 2007 Order which was denied on February 20, 2008, by Magistrate Judge Schneider. Hennessey argued in support of his motion that the remaining plaintiffs in this case are not in a position to proceed pro se and that there was no conflict in litigation strategy with Mr. Zeff. Magistrate Judge Schneider found that Hennessey's motion was untimely, and further found that Hennessey did not allege any new facts, clear error of law or intervening change in the controlling law as required by the standard for a motion for reconsideration. Magistrate Judge Schneider noted that Hennessey's arguments were the same arguments that he presented in his opposition to Mr. Zeff's motion to withdraw and therefore, had already been considered and rejected by the Court.

On April 10, 2008, Hennessey filed another motion for appointment of pro bono counsel. In this motion, Hennessey reiterated his arguments opposing Mr. Zeff's withdrawal and in support of his motion for reconsideration. Hennessey alleged that all of the plaintiffs in this case "more than qualify" for court appointed counsel due to "obvious obstacles, deficiencies, and/or lack of education, resources." On June 17, 2008, Magistrate Judge Schneider issued an Order denying Hennessey's motion for appointment of pro bono counsel from which Hennessey now appeals.


A. Standard of Review

A United States Magistrate Judge may hear and determine any [non-dispositive] pretrial matter pending before the court pursuant to 28 U.S.C. § 636(b)(1)(A). A district court judge will only reverse a magistrate judge's opinion on pretrial matters if it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); L. Civ. R. 72. 1(c)(1)(A). Under this standard, a finding is clearly erroneous when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." South Seas Catamaran, Inc. v. M/V Leeway, 120 F.R.D. 17, 21 (D.N.J. 1988)(citation omitted). "A district judge's simple disagreement with the magistrate judge's findings is insufficient to meet the clearly erroneous standard of review." Andrews v. Goodyear Tire & Rubber Co., Inc., 191 F.R.D. 59, 68 (D.N.J. 2000). A ruling is contrary to law if the magistrate judge has misinterpreted or misapplied applicable law. Gunter v. Ridgewood Energy Corp., 32 F. Supp. 2d 162, 164 (D.N.J. 1998). The party filing the notice of appeal bears the burden of demonstrating that the magistrate judge's decision was clearly erroneous or contrary to law. Exxon Corp. v. Halcon Shipping Co., Ltd., 156 F.R.D. 589, 591 (D.N.J. 1994).

Here, Magistrate Judge Schneider's June 17, 2008 Order pertains to a non-dispositive motion. Therefore, this Court will examine Hennessey's appeal under the "clearly erroneous or contrary to law" standard.*fn4

B. Analysis

Hennessey appeals Magistrate Judge Schneider's denial of his motion for appointment of pro bono counsel. The Court may, pursuant to 28 U.S.C.A. § 1915, request an attorney to represent an indigent plaintiff in a civil action. The statute provides that "the court may request an attorney to represent any person unable to afford counsel." 28 U.S.C.A. § 1915(e)(1). The appointment of counsel is a privilege rather than the right of a litigant, and it lies within the sole discretion of the Court.

Council v. Nash, No. 06-007(RBK), 2007 WL 1651191, at *1 (D.N.J. 2007)(citations omitted). In deciding whether to appoint counsel, the Court is first required to determine whether the plaintiff's claim has "some merit in fact and law." Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997). The Court may then consider the following factors to further determine if pro bono counsel should be requested: (1) the plaintiff's ability to present his own case, (2) the difficulty of the particular legal issue, (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 ...

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