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Clinton v. Jersey City Police Dept.


July 23, 2009


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


This matter having come before the Court by way of plaintiff's motion, filed on May 26, 2009 for appointment of pro bono counsel;*fn1

and the Court having considered plaintiff's application;*fn2

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 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 the Court further being required to consider 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 plaintiff having previously applied pro bono counsel on July 14, 2008, July 28, 2008, September 25, 2008, and March 9, 2009, see Docket Entry Nos. 23, 29, 56.*fn3

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

and a consideration of the Tabron factors showing that appointment of pro bono counsel is not warranted;*fn4 alleges his civil rights were violated when the defendants used excessive force against him. This area of law is well developed and the facts out of which his claim arises are not complex. The fact that the case may proceed in front of a jury does not warrant appointment of pro bono counsel, particularly where plaintiff has not explained why he could not present his case to a jury. Indeed, the issues and claims are ones a jury could understand without the help of an expert. Therefore, plaintiff's case does not involve a level of complexity that requires representation by a lawyer. Accordingly, this factor weighs against the appointment of counsel.

Third, plaintiff's incarceration will not burden his ability to conduct discovery. Tabron, 6 F.3d at 156 (stating "[t]he court may . . . consider the extent to which prisoners and other suffering confinement may face problems in pursuing their claim [such as] where the claims are likely to require extensive discovery and compliance with complex discovery rules."). First, the plaintiff can no longer be burdened during discovery because it is complete. Second, plaintiff had access to the tools of discovery and has not voiced any challenges to his ability to conduct discovery during the discovery period. This factor, therefore, weighs against appointment of counsel.

Fourth, the Court must consider whether or not the case is likely to turn on credibility determinations. "[W]hen considering this factor, courts should determine whether the case was solely a swearing contest." Parham, 126 F.3d at 460 (emphasis added). Because plaintiff alleges that his arrest involved excessive force, it is likely that this case will depend in part on credibility determinations. See Compl. at ¶ 6; Tabron, 6 F.3d at 158 (observing that when several witnesses dispute certain relevant facts, the case may involve credibility determinations.). That said, there is likely to be other evidence concerning plaintiff's claims such as medical information. Thus, it is not likely to be "solely" a swearing contest.

Fifth, the Court does not find that plaintiff's case will require expert testimony and no experts have been disclosed to the Court. Plaintiff's alleged injuries include "broken ribs, torn rotory [sic] cup [sic], [and] head and knee injuries," all of which would be apparent to a lay person, therefore, expert testimony is not essential to the plaintiff's case. Compl. at ¶ 6; see, e.g., Montgomery, 294 F.3d at 504 (holding "expert testimony is necessary when the seriousness of the injury or illness would not be apparent to a lay person."). Moreover, the discovery period has concluded and of no experts have been identified by now, none will be appearing at trial. Therefore, this factor weighs against appointment of counsel.

Sixth, plaintiff's inability to pay for counsel is an insufficient reason to appoint counsel. Plaintiff was granted in forma pauperis status, and has, therefore, been found to be unable to pay filing fees. Docket Entry No. 2; see Montgomery, 294 F.3d at 505; Parham, 126 F.3 at 461. While indigence is a prerequisite for the appointment of counsel, indigence alone does not warrant appointment of counsel absent satisfying other Tabron factors. In addition, plaintiff has not provided the Court with any information regarding the status of his attempts to retain an attorney or how his incarceration has impeded his ability to retain counsel. Moreover, plaintiff refers to continued legal assistance received from prison paralegals. Docket Entry No. 59-3 at ¶ 5. Thus, it appears he is, in fact, receiving some legal assistance. Accordingly, this factor weighs

IT IS ON THIS 23rd day of July, 2009

ORDERED that the plaintiff's motion [Docket No. 59] application [Docket No. 61] for appointment of pro bono counsel is denied without prejudice.

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