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Pressley v. East Dist. Precinct

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


March 15, 2010

DORIAN PRESSLEY, PLAINTIFF,
v.
EAST DISTRICT PRECINCT, ET. AL., DEFENDANTS.

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

ORDER ON INFORMAL APPLICATION

This matter having come before the Court by way of Plaintiff's application, filed on January 25, 2010, for appointment of pro bono counsel;*fn1 and the Court having considered Plaintiff's application;*fn2 and a request for the appointment for counsel being governed by the factors set forth in Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993); and Plaintiff's request failing to satisfy these factors;*fn3

Third, Plaintiff has an ability to conduct a factual investigation without the assistance of an attorney. Although Plaintiff is incarcerated, he does not currently appear to be hindered in his factual investigation. He has presented no facts to show that his factual investigation will be limited. Clinton, 2009 WL 2230938 (noting that where a plaintiff did not express any particular discovery challenges, appointment was not appropriate). Plaintiff has access to all of the discovery tools made available to him by the Federal Rules of Civil Procedure to investigate his claims. See Montgomery v. Pinchak, 294 F.3d 492, 503 (3d Cir. 2002) (stating that courts must consider a "prisoner's inability to gather facts relevant to the proof of his claim" when evaluating an application for pro bono counsel). This factor, therefore, weighs against appointment.

Fourth, Plaintiff's indigence is not by itself a sufficient basis to appoint counsel. See Clinton, 2009 U.S. Dist. LEXIS 64464, at *12--13. Moreover, he has not demonstrated any efforts to retain an attorney. See Thompson Union County Div. of Soc. Servs., 07-4928, 2008 U.S. Dist. LEXIS 62077 (stating that "[p]ro bono counsel is an extremely limited resource and the court is reluctant to appoint counsel to an individual who has not demonstrated an effort to argue his own representations."). Therefore, this factor weighs against appointment.

Fifth, it is not clear the extend to which the case will turn on credibility determinations. In fact, for this factor to be determinative, "courts should determine whether the case will be solely a swearing contest." Montgomery, 294 F.3d at 505 (quoting Parham, 126 F.3d at 460). Here, evidence, such as medical records, may be used to support his claim and this may be sufficient to show that credibility alone may not be the sole deciding factor. Therefore, it is not now apparent that the case will be "solely a swearing contest." Id. (emphasis added). This factor, therefore, does not presently support appointing counsel.

Sixth, it is uncertain whether expert testimony will be required at trial. Based upon the submissions, Plaintiff's alleged injuries include damage in his right eye, however, it is not apparent that an expert is needed to determine the extent and seriousness of the injuries claimed. See id. at 504 (noting that experts are generally needed to prove "the seriousness of injury or illness [that] would not be apparent to a lay person"). Thus, this factor does not presently weigh in favor of appointing counsel.

Because consideration of the Tabron factors on this record shows that appointment of counsel is not warranted, Plaintiff's application for the appointment of pro bono counsel is denied.

IT IS THEREFORE ON THIS 15th day of March 2010,

ORDERED that Plaintiff's application for appointment of pro bono counsel [Docket Entry No. 9] is denied.


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