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Joel Jermaine Bacon v. Dr. Mandell et al

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


September 14, 2012

JOEL JERMAINE BACON, PLAINTIFF,
v.
DR. MANDELL ET AL., DEFENDANTS. JOEL JERMAINE BACON, PLAINTIFF,
v.
ANNE KLEIN FORENSIC CENTER, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
CHRISTIE TODD WHITMAN, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
ALEX DAVIS, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
JAMESBURG DETENTION HOME, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
JAMES FORSYTHE #43618, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
DR. ROBERT ROTH, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
DR. B. MARTY, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
ATLANTIC CITY POLICE, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
MR. JOHN MANE ET AL., DEFENDANTS. JOEL JERMAINE BACON, PLAINTIFF,
v.
ANNE KLEIN FORENSIC CENTER ET AL., DEFENDANTS. JOEL JERMAINE BACON, PLAINTIFF,
v.
THOMAS KAZANES ET AL., DEFENDANTS. JOEL JERMAINE BACON, PLAINTIFF,
v.
RASHON JOHNSON, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
M.S.O. SYLVESTER, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
TRENTON STATE PRISON, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
ALL MEDICAL STAFF ET AL., DEFENDANTS. JOEL JERMAINE BACON, PLAINTIFF,
v.
ALL REHAB STAFF ET AL., DEFENDANTS. JOEL JERMAINE BACON, PLAINTIFF,
v.
DOCTORS SUPERVISORS ET AL., DEFENDANTS. JOEL JERMAINE BACON, PLAINTIFF,
v.
ALL MSO'S AND SR MSO'S ET AL., DEFENDANTS. JOEL JERMAINE BACON, PLAINTIFF,
v.
KITCHEN SUPERVISORS ET AL., DEFENDANTS. JOEL JERMAINE BACON, PLAINTIFF,
v.
ALL KITCHEN STAFF ET AL., DEFENDANTS. JOEL JERMAINE BACON, PLAINTIFF,
v.
SR. M.S.O. LOPEZ, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
STATE OF NEW JERSEY, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
ATLANTIC CITY PRESS, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
SURVEILLANCE SECURITY, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
ALL DOCTORS ET AL., DEFENDANTS. JOEL JERMAINE BACON, PLAINTIFF,
v.
ALL TREATMENT TEAMS ET AL., DEFENDANTS. JOEL JERMAINE BACON, PLAINTIFF,
v.
THE ATLANTIC CITY PRESS, DEFENDANT. JOEL JERMAINE BACON, PLAINTIFF,
v.
SUPERVISOR 1ST 2ND 3RD SHIFT DEFENDANTS.

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

OPINION APPLIES TO ALL ACTIONS

I. FACTUAL AND PROCEDURAL

BACKGROUND

A. Bacon v. Burns, Civil Action No. 10-5484 (JBS)

Plaintiff is a civilly committed individual who commenced his initial case in this District on October 22, 2010; that case was assigned to Judge Jerome B. Simandle ("Judge Simandle"). See Bacon v. Burns ("Bacon v. Burns"), Civil Action No. 10-5484 (JBS) (D.N.J. Oct 22, 2010). The pro se complaint in Bacon v. Burns, as well as the pro se amended complaint filed in that matter on December 23, 2010, alleged that, during a certain period of Plaintiff's confinement, he was subjected to involuntary medication with the anti-psychotic drug Haldol in violation of his constitutional rights. See Bacon v. Burns, Docket Entry No. 1. On April 13, 2011, the defendants in Bacon v. Burns filed their first motion for summary judgment, challenging Plaintiff's claims which, at that point, were still argued pro se. See id. Docket Entries Nos. 13 and 14.

On November 15, 2011, Judge Simandle granted the defendants' motion in part and denied it in part, allowing the sole remaining defendant to file a supplemental motion for summary judgment.*fn1 See id. Docket Entries Nos. 25 and 26.

In connection with resolving the first motion for summary judgment, Judge Simandle made the following factual finding:

On June 1, 2009, the Plaintiff was transferred from Ann Klein Forensic Center to Ancora Psychiatric Hospital in Hammonton, New Jersey. . . . Dr. Elizabeth Burns . . . the treating psychiatrist for the Plaintiff at Ancora Psychiatric Hospital from September 22, 2009 to January 13, 2010. Dr. Burns diagnosed the Plaintiff with Schizoaffective Disorder Bipolar Type, a major mental illness. Shortly after Dr. Burns began treating the Plaintiff, Dr. Burns prescribed several medications, including Haldol, for his psychiatric disorder. . . . Dr. Burns concluded in her professional opinion that the prescribed medications, including Haldol, were a necessary part of the Plaintiff's treatment plan. . . . On December 3, 2009, Dr. Burns initiated the Three Step Process followed by Ancora Psychiatric Hospital in accordance with New Jersey Administrative Bulletin 5:04 for administering psychotropic medication to a non-consenting patient. Dr. Burns certified that the Plaintiff would harm himself or others without the medication . . . .

Bacon v. Burns, 2011 U.S. Dist. LEXIS 132148, at *1-3 (D.N.J. Nov. 15, 2011) (citations omitted).

In February 2012, that is, about a year and a half after commencing his Bacon v. Burns action, Plaintiff ceased proceeding pro se in that matter, since Judge Simandle appointed two attorneys to act as Plaintiff's pro bono counsel for the purposes of Plaintiff's opposition to that supplemental motion and the remainder of Bacon v. Burns action. See id. Docket Entries Nos. 35, 36, 37, 51 and 52. As of now, that motion is still pending.

B. First Duplicative Case: Bacon v. Mandell

Meanwhile, on October 25, 2010, Plaintiff submitted another civil complaint; that complaint also asserted that his constitutional rights were violated by the same chain of involuntary medications. See Bacon v. Madnell ("Bacon v. Madnell"), Civil Action No. 10-5506 (JAP) (D.N.J. Oct. 25, 2010). This Court, presiding over the Bacon v. Madnell matter, directed administrative termination of Bacon v. Madnell as facially duplicative of Bacon v. Burns. See Bacon v. Madnell, Civil Action No. 10-5506, Docket Entry No. 2. In response, Plaintiff applied for appointment of pro bono counsel and submitted a letter asserting that Bacon v. Mandel was closed in error. See id. Docket Entries Nos. 4 and 5. The Court construed these applications as Plaintiff's motion for reconsideration and denied the same by an order issued on December 1, 2010. See id. Docket Entry No. 6.

C. Second Duplicative Case: Bacon v. Adetunji

On February 8, 2011, Plaintiff submitted another civil complaint asserting that his rights were violated by the same chain of involuntary medications. See Bacon v. Adetunji ("Bacon v. Adetunji"), Civil Action No. 11-0706 (JBS) (D.N.J. Feb. 8, 2011), Docket Entry No. 1.

Since Plaintiff's complaint in Bacon v. Adetunji was subject to dismissal on the grounds already articulated twice by this Court in Bacon v. Madnell, Judge Simandle directed termination of Bacon v. Adetunji as duplicative. See Bacon v. Adetunji, Civil Action No. 11-0706, Docket Entry No. 2 (relying on the explanations provided by this Court in Bacon v. Madnell). That termination took place on March 21, 2011. See id. at 3.

D. Six Cases Commenced at the Beginning of 2012

During the first few months of 2012, Plaintiff submitted six new civil complaints, thus commencing six new actions in this District. Specifically, Plaintiff initiated Bacon v. Dupree ("Bacon v. Dupree"), Civil Action No. 12-0784 (assigned to Judge Simandle),*fn2 and five matters assigned to the undersigned, namely: Bacon v. Anne Klein Forensic Center ("Bacon v. AKFC"), Civil Action No. 12-0841; Bacon v. Whitman ("Bacon v. Whitman"), Civil Action No. 12-0842; Bacon v. Davis ("Bacon v. Davis"), Civil Action No. 12-0843; Bacon v. Jamesburg Detention Home for Boys ("Bacon v. Jamesburg"), Civil Action No. 12-0844; and Bacon v. Forsythe ("Bacon v. Forsythe"), Civil Action No. 12-0845.

In Bacon v. AKFC, Plaintiff asserted that he was "falsely convicted of crime and put in double jeopardy"; he sought monetary damages in the amount of "eight billion dollars" on the basis of his belief that his conviction and/or civil confinement were illegal. The Court determined that this application for monetary relief was facially premature under the holding of Heck v. Humphrey, 512 U.S. 477 (1994), while Plaintiff's request for release from confinement was subject to dismissal for lack of jurisdiction, since that request was of habeas nature. See Bacon v. Anne Klein Forensic Ctr., 2012 U.S. Dist. LEXIS 71018 (D.N.J. May 21, 2012). However, out of abundance of caution, the Court granted leave to Plaintiff to file an amended complaint in Bacon v. AKFC and reserved the determination as to whether Plaintiff's application for appointment of pro bono counsel should be granted.*fn3

In Bacon v. Whitman, Plaintiff alleged that a certain "Christie Todd Whitman"*fn4 violated Plaintiff's rights because she "endangered the welfare of a child" since she "put criminal charges on a child that were meant to protect children but instead put this child in a dangerous position for the rest of his life on Megans as a juvenile child 14 years old." Bacon v. Whitman, Docket Entry No. 1. In connection with this allegation, Plaintiff sought "88 zillion dollars." Id. The Court ruled on Plaintiff's Bacon v. Whitman challenges as follows:

Even if this Court were to hypothesize that Plaintiff refers to himself as "the child" at issue (since, otherwise, Plaintiff's claims would necessarily be subject to dismissal for lack of standing), it is self-evident that Governor Whitman could not have any personal involvement in Plaintiff's criminal prosecution or in procurement of his order of civil commitment, since - at no point in her career -Governor Whitman acted as an attorney, moreover a prosecutor. Therefore, even reading Plaintiff's claim in the light most favorable to Plaintiff, this Court can construe his Bacon v. Whitman challenge only as an assertion that Governor Whitman violated Plaintiff's rights by being New Jersey Governor during the time when either Plaintiff's criminal prosecution or his civil commitment proceedings were taking place. However, at most, this claim implicates Governor Whitman only in her supervisory capacity, as the State's top administrative official. That claim is facially meritless, since challenges based on solely on the respondeat superior theory are not cognizable under Section 1983.

Bacon v. Anne Klein Forensic Ctr., 2012 U.S. Dist. LEXIS 71018, at *11-12 (citations omitted).

Consequently, as with Bacon v. AKFC, the Court dismissed Plaintiff's Bacon v. Whitman challenges without prejudice to filing of amended pleading and reserved its determination as to whether appointment of pro bono counsel was warranted.*fn5

In Bacon v. Davis, Plaintiff alleged that a certain "Alex Davis" committed medical malpractice by forcefully injecting Plaintiff with Haldol (apparently, per Dr. Burn's orders); in connection with that assertion, Plaintiff maintained that he was allergic to Haldol and sought "2 billion dollars." See Bacon v. Davis, Docket Entry No. 1. However, Judge Simandle's decision in Bacon v. Burns -- and the underlying record filed in that matter -- established that Plaintiff had no allergic reaction to Haldol. See, generally, Bacon v. Burns, 2011 U.S. Dist. LEXIS 132148 at *5 (describing Plaintiff's treatment). Correspondingly, this Court dismissed Plaintiff's Bacon v. Davis challenges for lack of diversity jurisdiction (necessary to support a state-law medical malpractice claim) and as barred by the doctrine of res judicata in light of Judge Simandle's factual findings made in Bacon v. Burns. See Bacon v. Anne Klein Forensic Ctr., 2012 U.S. Dist. LEXIS 71018, at *12-13. However, as with Bacon v. AKFC and Bacon v. Whitman, the Court dismissed Plaintiff's Bacon v. Davis challenges with leave to file an amended complaint; the Court also reserved its determination as to appointment of pro bono counsel.*fn6

In Bacon v. Jamesburg, Plaintiff named "Jamesburg Detention Home for Boys"*fn7 as the sole defendant; he asserted that this defendant "[d]id not treat for crime with facts of finding and brought no legal law[]yers for child." Bacon v. Jamesburg, Docket Entry No. 1. In connection with that assertion, Plaintiff sought "one million eight hundred thousand dollars" in damages. Id.

The Court pointed out that Plaintiff's Bacon v. Jamesburg challenges were defective for a number of reasons. First, a detention center is not a "person" within the meaning of a § 1983 suit. Furthermore, even if this Court were to presume that Plaintiff wished to name facility staff (rather than the facility itself) as Defendant, the facility staff -- being employees of a place of confinement -- had no duty to obtain, and no role in obtaining, legal representation for Plaintiff. Finally, even presuming that Plaintiff merely wished to assert that he was wrongfully convicted or civilly committed, his claims would be barred by Heck on the grounds already articulated by this Court with regard to Bacon v. AKFC, as his challenges would be premature.

Bacon v. Anne Klein Forensic Ctr., 2012 U.S. Dist. LEXIS 71018, at *14-15 (citations omitted).

Nonetheless, as in Bacon v. AKFC, Bacon v. Whitman and Bacon v. Davis, the Court dismissed Plaintiff's Bacon v. Jamesburg allegations without prejudice and reserved the issue of whether appointment of pro bono counsel was warranted.*fn8

Finally, in Bacon v. Forsythe, Plaintiff alleged that a certain "Forsythe," who apparently was an inmate, violated Plaintiff's rights because Forsythe "lied on Joel Bacon about a crime [thus] destroying someone's life." Bacon v. Forsythe, Docket Entry No. 1. Plaintiff clarified that the alleged lie took place during Forsythe's testimony before a certain judge; in connection with this allegation Plaintiff sought "1.28 billion dollars." Id. The Court dismissed these challenges since witnesses are absolutely immune from civil suit for damages based upon their testimony. See Bacon v. Anne Klein Forensic Ctr., 2012 U.S. Dist. LEXIS 71018, at *15.

As in Bacon v. AKFC, Bacon v. Whitman, Bacon v. Davis and Bacon v. Jamesburg, the Court dismissed Plaintiff's Bacon v. Forsythe claims with leave to amend and reserved the issue of whether appointment of pro bono counsel was warranted.*fn9

E. Recent Influx of Cases

Shortly after his commencement of Bacon v. AKFC, Bacon v. Whitman, Bacon v. Davis, Bacon v. Jamesburg and Bacon v. Forsythe, Plaintiff initiated twenty-three other matters in this District.*fn10

1. Bacon v. Roth

In Bacon v. Roth, Civil Action No. 12-2778 (JAP) (D.N.J. May 8, 2012), Plaintiff asserted, once again, that he was unduly subjected to forced medication; in connection with this claim, Plaintiff requested "one billion dollars" in damages. See id. Docket Entry No. 1. Although Plaintiff's Bacon v. Roth challenges are facially duplicative of those raised un Bacon v. Burns (and of those dismissed in Bacon v. Mandell and Bacon v. Adetunji), Plaintiff has applied for appointment of pro bono counsel in Bacon v. Roth in an apparent hope to have a legal counsel help him litigate these duplicative challenges.

2. Bacon v. Marty

In Bacon v. Marty, Civil Action No. 12-2779 (JAP) (D.N.J. May 8, 2012), Plaintiff asserted that a certain "Dr. Marty" was "neglecting" Plaintiff by not responding to Plaintiff's phone calls and by promising Plaintiff to keep "neglecting" Plaintiff's calls to "Dr. Marty's hospital." See id. Docket Entry No. 1. In connection with this claim, Plaintiff requested "one billion dollars" in damages. See id. Plaintiff's Bacon v. Marty challenges appears facially meritless, since Plaintiff had no constitutional right in phone calls to a doctor or a hospital (moreover to the doctor or hospital of Plaintiff's choice). Plaintiff has applied for appointment of pro bono counsel in Bacon v. Marty.

3. Bacon v. Atlantic City Police

In Bacon v. Atlantic City Police, Civil Action No. 12-2883 (JAP) (D.N.J. May 8, 2012), Plaintiff -- who is and has been for many years confined in state facilities -- asserted, without any clarification, "police brutality, excessive force and attempted murder." See id. Docket Entry No. 1. In connection with this new line of claims, Plaintiff sought "eighteen billion dollars" in damages. See id. Plaintiff's Bacon v. Atlantic City Police challenges appear time barred and wholly divorced from any viable factual predicate. Plaintiff has applied for appointment of pro bono counsel in Bacon v. Atlantic City Police.

4. Bacon v. Mane

In Bacon v. Mane, Civil Action No. 12-3055 (JAP) (D.N.J. May 23, 2012), Plaintiff asserted that a certain Mr. Mane who "runs Anne Klein Forensic Center" violated Plaintiff's rights because Mr. Mane "told his officers to violate [Plaintiff's] freedom of speech [since Plaintiff] couldn't say what [he] wanted to say." See id. Docket Entry No. 1.

In connection with this claim, Plaintiff sought "88 billion dollars" in damages. See id. Plaintiff's Bacon v. Mane challenges appear to be lacking a constitutional claim and, in addition, are based on nothing but non-cognizable in Section 1983 actions doctrine of respondeat superior. Plaintiff has applied for appointment of pro bono counsel in Bacon v. Mane.

5. Bacon v. AKFC, Second Action

In Bacon v. Anne Klein Forensic Center, Civil Action No. 12-3056 (JAP) (D.N.J. May 23, 2012), Plaintiff asserted that "all staff" of the Anne Klein Forensic Center (specifically, the first, second and third shifts of the staff) violated "all [his] rights." See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought "1 trillion dollars" in damages. See id. This second round of Plaintiff's Bacon v. AKFC challenges either do not state a claim or contain allegations facially failing to meet the requirements of Rule 8, as clarified in Iqbal. Plaintiff has applied for appointment of pro bono counsel in this second Bacon v. AKFC action.

6. Bacon v. Kazanes

In Bacon v. Kazanes, Civil Action No. 12-3069 (JAP) (D.N.J. May 29, 2012), Plaintiff asserted that a certain Mr. Kazanes, who is a patient held in the Anne Klein Forensic Center, "assaulted" Plaintiff "with [a] book." See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought "1 million dollars" in damages. See id. Plaintiff's Bacon v. Kazanes challenges appear to be defective for failure to meet the color-of-law requirement. Plaintiff has applied for appointment of pro bono counsel in Bacon v. Kazanes.

7. Bacon v. Johnson

In Bacon v. Johnson, Civil Action No. 12-3170 (JAP) (D.N.J. May 29, 2012), Plaintiff asserted that a certain Mr. Johnson, who is a "client" (which the Court presumes is a term used by Plaintiff to describe another patient held in the Anne Klein Forensic Center), "assaulted" Plaintiff "with closed fist." See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought "1 million dollars" in damages. See id. Plaintiff's Bacon v. Johnson challenges appear to be defective for the same reason as the claims raised in Bacon v. Kazanes, i.e., for failure to meet the color-of-law requirement. Plaintiff has applied for appointment of pro bono counsel in Bacon v. Johnson.

8. Bacon v. M.S.O. Sylvester

In Bacon v. M.S.O. Sylvester, Civil Action No. 12-3069 (JAP) (D.N.J. May 30, 2012), Plaintiff asserted that a certain Officer Sylvester made "terroristic threats" by telling Plaintiff, during "October" of an unspecified year, that Officer Sylvester would "get [Plaintiff] hurt." See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought "1 million dollars" in damages. See id. Plaintiff's Bacon v. M.S.O. Sylvester challenges appear to be ripe for dismissal for failure to assert a valid failure-to-protect or conditions-of-confinement claim and/or as speculative, and/or as untimely. Plaintiff has applied for appointment of pro bono counsel in Bacon v. M.S.O. Sylvester.

9. Bacon v. Trenton State Prison

In Bacon v. Trenton State Prison, Civil Action No. 12-3272 (JAP) (D.N.J. May 31, 2012), Plaintiff asserted that the prison violated his rights by having Plaintiff confined in a "laboratory testing facility against [his] will." See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought "1 trillion dollars" in damages. See id. Plaintiff's Bacon v. Trenton State Prison challenges appear to be defective since a prison is not a "person" within the meaning of Section 1983 and, even if Plaintiff's claims were construed as challenges against the prison staff, these claims are either Heck-barred or subject to dismissal for lack of habeas jurisdiction (that is, to the degree these claims were meant to seek release from confinement). Plaintiff has applied for appointment of pro bono counsel in Bacon v. Trenton State Prison.

10. Bacon v. All Medical Staff

In Bacon v. All Medical Staff, Civil Action No. 12-3273 (JAP) (D.N.J. May 31, 2012), Plaintiff asserted that a certain unspecified medical staff "violated [his] patient['s] bill of rights illegally and disrespectfully." See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought "8 billion dollars" in damages. See id. Plaintiff's Bacon v. All Medical Staff challenges appear defective for failure to assert a conditions-of-confinement claim. Plaintiff has applied for appointment of pro bono counsel in this Bacon v. All Medical Staff.

11. Bacon v. All Rehab Staff

In Bacon v. All Rehab Staff, Civil Action No. 12-3274 (JAP) (D.N.J. May 31, 2012), Plaintiff asserted that "all rehab staff" violated Plaintiff's rights because they failed to "rehabilitate" him. See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought the amount of "8 billion dollars" in damages. See id. Plaintiff's Bacon v. All Rehab Staff challenges appear defective for failure to assert a valid denial-of-medical-care claim. Plaintiff has applied for appointment of pro bono counsel in Bacon v. All Rehab Staff.

12. Bacon v. Doctors Supervisors

In Bacon v. Doctors Supervisors, Civil Action No. 12-3390 (JAP) (D.N.J. June 4, 2012), Plaintiff asserted that certain unspecified "Doctors Supervisors" violated his rights by failing to cure Plaintiff. See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought "8 billion dollars" in damages. See id. Plaintiff's Bacon v. Doctors Supervisors challenges appear to ripe for dismissal for failure to assert a valid denial-of-medical-care claim. Plaintiff has applied for appointment of pro bono counsel in Bacon v. Doctors Supervisors.

13. Bacon v. All M.S.O's

In Bacon v. All M.S.O's, Civil Action No. 12-3391 (JAP) (D.N.J. June 4, 2012), Plaintiff asserted that certain unspecified "all M.S.O's" "disrespected and violated" his unspecified rights. See id. Docket Entry No. 1. In connection with this claim, Plaintiff again sought "8 billion dollars" in damages. See id. Plaintiff's Bacon v. All M.S.O's challenges appear to be subject to dismissal for failure to assert a valid conditions-of-confinement claim. Plaintiff has applied for appointment of pro bono counsel in Bacon v. All M.S.O's.*fn11

14. Bacon v. Kitchen Supervisors

In Bacon v. Kitchen Supervisors, Civil Action No. 12-3392 (JAP) (D.N.J. June 4, 2012), Plaintiff asserted that certain unspecified "Kitchen Supervisors" violated his unspecified rights simply because these supervisors "did not help [someone unspecified in the complaint] to prepare food." See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought the familiar amount, i.e., "8 billion dollars" in damages. See id. Although Plaintiff's Bacon v. Kitchen Supervisors challenges were subject to dismissal for failure to assert a constitutional challenge, Plaintiff applied for appointment of pro bono counsel in Bacon v. Kitchen Supervisors hoping that a legal counsel would be appointed to litigate these claims.*fn12

15. Bacon v. Kitchen Supervisors, Second Action

In Bacon v. Kitchen Supervisors, Civil Action No. 12-3393 (JAP) (D.N.J. June 4, 2012), Plaintiff asserted that certain unspecified "Kitchen Supervisors" violated his unspecified rights because these supervisors "did not feed [him his] right meal." See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought "8 billion dollars" in damages. See id. Plaintiff's second round of Bacon v. Kitchen Supervisors challenges appear subject to dismissal for failure to assert a valid conditions-of-confinement claim.*fn13 Plaintiff has applied for appointment of pro bono counsel in this second Bacon v. Kitchen Supervisors action.*fn14

16. Bacon v. M.S.O. Lopez

In Bacon v. M.S.O. Lopez, Civil Action No. 12-3479 (JAP) (D.N.J. June 11, 2012), Plaintiff asserted that a certain M.S.O. Lopez violated Plaintiff's rights because M.S.O. Lopez "assaulted [a certain] patient with [a] minor infraction" causing that patient the "need [for] needles in [his] body." See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought "88 billion dollars" in damages. See id. Plaintiff's challenge in this case appears to have been raised without proper standing. Plaintiff has applied for appointment of pro bono counsel in Bacon v. M.S.O. Lopez.

17. Bacon v. State of New Jersey

In Bacon v. State of New Jersey, Civil Action No. 12-3494 (JAP) (D.N.J. June 11, 2012), Plaintiff asserted that the State violated his rights by failing to release him from confinement (or by failing to move him to a certain camp). See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought "1 million dollars" in damages. See id. Plaintiff's claims challenging the selection of his place of confinement facially fails to state a cognizable claim, while his claims challenging the fact of his confinement were either Heck-barred or subject to dismissal for lack of habeas jurisdiction (that is, to the degree Plaintiff wished to seek release). Plaintiff has applied for appointment of pro bono counsel in Bacon v. State of New Jersey.

18. Bacon v. Atlantic City Press

In Bacon v. Atlantic City Press, Civil Action No. 12-3575 (JAP) (D.N.J. June 11, 2012), Plaintiff asserted that a newspaper violated his rights because it "put a juvenile in jeopardy" by "put[ting that] juvenile['s] name in the paper." See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought "88 billion dollars" in damages. See id. Plaintiff's claims appear facially subject to dismissal for failure to meet the color-of-law requirement. Plaintiff has applied for appointment of pro bono counsel in Bacon v. Atlantic City Press.

19. Bacon v. Surveillance Security

In Bacon v. Surveillance Security, Civil Action No. 12-3580 (JAP) (D.N.J. June 13, 2012), Plaintiff asserted that a certain "surveillance security" "d[id]n't have cameras in every camp." See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought "1 million dollars" in damages. See id. Plaintiff's allegations fail to state a cognizable constitutional challenge. Plaintiff has applied for appointment of pro bono counsel in Bacon v. Surveillance Security.

20. Bacon v. All Doctors

In Bacon v. Surveillance Security, Civil Action No. 12-3694 (JAP) (D.N.J. June 18, 2012), Plaintiff re-asserted an already familiar claim, namely, that certain unspecified doctors "treated [Plaintiff] irrespo[n]sibl[]y" by violating Plaintiff's "patient['s] bill of rights." See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought "88 billion dollars" in damages. See id. Plaintiff's negligence-based allegations fail to state a valid constitutional denial-of-medical-care claim. Plaintiff applied for appointment of pro bono counsel in Bacon v. All Doctors.

21. Bacon v. All Treatment Teams

In Bacon v. All Treatment Teams, Civil Action No. 12-4341 (JAP) (D.N.J. July 13, 2012), Plaintiff cryptically asserted that unspecified "treatment teams" "did not notify to help." See id. Docket Entry No. 1. In connection with this claim, which does not suggest presence of any constitutional challenges, Plaintiff sought his favorite amount of "8 billion dollars" in damages. See id. Plaintiff has applied for appointment of pro bono counsel in Bacon v. All Treatment Teams.

22. Bacon v. Atlantic City Press, Second Action

In Bacon v. Atlantic City Press, Civil Action No. 12-4511 (JAP) (D.N.J. July 18, 2012), Plaintiff repeated, verbatim, his challenges stated in the first Bacon v. Atlantic City Press action; he also demanded the same monetary relief. As in his first Bacon v. Atlantic City Press action, Plaintiff applied for appointment of pro bono counsel in this second Bacon v. All Doctors action in hope to have a legal counsel litigate these apparently barred-by-the-color-of-law-requirement claims.

23. Bacon v. AKFC, Third Action

In Bacon v. [Anne Klein Forensic Center] Supervisors [of] 1st [and] 2nd [and] 3rd Shift, Civil Action No. 12-5230 (JAP) (D.N.J. Aug. 17, 2012), Plaintiff asserted that certain unspecified "supervisors" of the Anne Klein Forensic Center violated his rights because these supervisors "were suppose[d] to help [Plaintiff] stay safe from [other] patients and staff [but did not]." See id. Docket Entry No. 1. In connection with this claim, Plaintiff sought the amount of "8 billion dollars" in damages. See id. This third round of Plaintiff's Bacon v. AKFC challenges fails to state a failure-to-protect claim (and, in addition, stated allegations insufficient due to being based solely on the respondeat superior theory). Plaintiff has applied for appointment of pro bono counsel in this third Bacon v. AKFC.

F. Total Amount of Submissions Made In Matters Presented to This Court

Factoring out all Plaintiff's applications pending before and resolved by Judge Simandle, i.e., focusing solely on the cases presented to this Court, the Court notes that Plaintiff, as of now, has submitted at least (a) 29 original complaints; (b) 2 amended complaints; (c) 34 applications for appointment of pro bono counsel; (d) 9 letters; and (e) 31 in forma pauperis applications, jointly producing a total of 564 pages.

II. RELEVANT CONSIDERATIONS

A number of legal considerations appear highly relevant to the cluster of cases at bar. The Court, therefore, finds it warranted to summarize these considerations.

A. Rule 8 Considerations

It is axiomatic that Section 1915(e)(2)(B)(i) "authorizes the dismissal of a[n IFP action] as factually frivolous if a court determines that the contentions are clearly baseless." Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995). "[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them."*fn15 Denton v. Hernandez, 504 U.S. 25, 33 (1992). Correspondingly, when determining whether a pleading is frivolous, the Court need not accept the factual allegations as true, but must "pierce the veil" of the pleading to determine whether the allegations are "fanciful," "fantastic" or "delusional." Id.

However, dismissal of allegations as "fanciful," "fantastic" or "delusional" is never made lightly, since the court are mindful of the guidance that "[merely] improbable allegations [should not be] dismiss[ed] as frivolous without any factual development [since, to do so, would be] to disregard the age-old insight that many allegations might be 'strange, but true; for truth is always strange, [s]tranger than fiction.'" Denton v. Hernandez, 504 U.S. 25, 33 (1992) (quoting Lord Byron, Don Juan, canto XIV, stanza 101 (T. Steffan, E. Steffan, & W. Pratt eds. 1977)).

Therefore, where allegations cannot be readily qualified as "clearly baseless," id., the courts screen complaints under the Rule 8 standard. For the purposes of such screening, it is long established that a court should "accept as true all of the [factual] allegations in the complaint." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nonetheless, the Third Circuit has always directed district courts not to credit bald assertions or legal conclusions improperly alleged in the complaint, see Burlington Coat Fact. Sec. Litig., 114 F.3d 1410, 1429 (3d Cir. 1997), and -- addressing the clarifications as to the litigant's pleading requirement stated by the United States Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) -- provided the district courts with guidance as to what pleadings are sufficient to pass muster under Rule 8. See Phillips v. County of Allegheny, 515 F.3d 224, 230-34 (3d Cir. 2008). Specifically, the Court of Appeals observed:

"While a complaint . . . does not need detailed factual allegations, a plaintiff's obligation [is] to provide the 'grounds' of his 'entitle[ment] to relief' . . . ." Twombly, 127 S. Ct. at 1964-65 . . ."[T]he threshold requirement of Rule 8(a)(2) [is] that the 'plain statement [must] possess enough heft to 'sho[w] that the pleader is entitled to relief.'" Id. at 1966. [Hence] "factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965 & n.3. Id. at 230-34 (original brackets removed).

This pleading standard was further refined by the United States Supreme Court in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), where the Supreme Court clarified as follows:

[In any civil action, t]he pleading standard . . . demands more than an unadorned ["]the-defendant-unlawfully-harmed-me["] accusation. [Twombly, 550 U.S.] at 555 . . . . A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." [Id.] at 555. [Moreover,] the plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully. Id. [Indeed, even w]here a complaint pleads facts that are "merely consistent with" a defendant's liability, [the so-alleging complaint still] "stops short of [showing] plausibility of 'entitlement to relief.'" Id. at 557 (brackets omitted). [A fortiori,] the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions [or to t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements[, i.e., by] legal conclusion[s] couched as a factual allegation [e.g.,] the plaintiffs' assertion of an unlawful agreement [or] that [defendants] adopted a policy "'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." . . . . [W]e do not reject these bald allegations on the ground that they are unrealistic or nonsensical. . . . It is the conclusory nature of [these] allegations . . . that disentitles them to the presumption of truth. . . . [Finally,] the question [of sufficiency of] pleadings does not turn [on] the discovery process. Twombly, 550 U.S.] at 559 . . . . [The plaintiff] is not entitled to discovery [where the complaint asserts some wrongs] "generally," [i.e., as] a conclusory allegation [since] Rule 8 does not [allow] pleading the bare elements of [the] cause of action [and] affix[ing] the label "general allegation" [in hope of developing actual facts through discovery].

Iqbal, 129 S. Ct. at 1949-54.

The Third Circuit pointed out that Iqbal hammered the "final nail-in-the-coffin" for the "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),*fn16 which was applied to federal complaints before Twombly. See Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009). Since Iqbal, the Third Circuit has, in no ambiguous terms, instructed district courts to conduct, with regard to allegations amenable to Rule 8 review, the following analysis:

First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. [See Iqbal, 129 S. Ct. at 1949-50]. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief" [in light of the definition of "plausibility" provided in Iqbal.] In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. See Phillips, 515 F.3d at 234-35. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Iqbal, [129 S. Ct. at 1949-50 (emphasis supplied)]. This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

Fowler, 578 F.3d at 210-11.

Correspondingly, where the allegations cannot be immediately qualified as "fanciful," "fantastic" or "delusional," the district court may dismiss a litigant's allegations on merits only for failure to state a claim within the meaning of Rule 8, as interpreted in Iqbal and Fowler. Moreover, in determining the sufficiency of a pro se complaint, the district court must be mindful to construe the plaintiff's allegations liberally, see Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992), and -- paramountly here -- make "all reasonable [legal] inferences that can be drawn" from the factual predicate alleged in such complaint. Morse, 132 F.3d at 906. Which, in turn, means that a pro se plaintiff need not state any legal causes: all (s)he has to state are the facts of his/her challenges, and the court, sua sponte, would make every plausible legal inference on behalf of such pro se plaintiff. See Twombly, 550 U.S. at 570 (a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face"); Browne v. Folino, 2011 U.S. Dist. LEXIS 115193, at *16 (W.D. Pa. Sept. 9, 2011) (citing Twombly and Haines v. Kerner, 404 U.S. 519, 520 (1972), to point out that "[p]laintiff need only plead facts that state a plausible claim for relief [since p]laintiff enjoys the liberal review of his pleadings afforded to all pro se litigants"); see also Spellman v. Am. Eagle Express, Inc., 2011 U.S. Dist. LEXIS 53521, at *3 (E.D. Pa. May 18, 2011) ("In the first step, which is assessed early in the litigation process, the plaintiff . . . must make only a 'modest factual showing'"); accord Imoore v. Gasbarro, 2012 U.S. Dist. LEXIS 73114, at *16 (D.N.J. May 24, 2012) (citing Advanta Corp. Sec. Litig., 180 F.3d 525, 534 (3d Cir. 1999), which -- in turn -- quoted DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990), "for the observation that a pleading must [merely] indicate 'the who, what, when, where, and how: the first paragraph of any newspaper story'"); cf., Hoffenberg v. Grondolsky, 2011 U.S. Dist. LEXIS 3786, at *18 (D.N.J. Jan. 14, 2011) ("the Court explained to [plaintiff that he had] to plead his claims by asserting facts, and facts only, in a clear and concise statement"), aff'd in part, remended on other grounds, Hoffenberg v. Bumb, 446 Fed. App'x 394 (3d Cir. 2011).

B. Section 1915 As the Key Provision For Appointing Pro Bono Counsel

A civil litigant possesses no constitutional right to legal representation. See Parham v. Johnson, 126 F.3d 454, 456 (3d Cir. 1997). However, a district court may request an attorney to represent a person who has been granted permission to proceed in forma pauperis in the action and is unable to afford counsel. See 28 U.S.C. § 1915(e)(1). That being said, since pro bono time is a precious and limited commodity, the appointment of counsel should be given consideration only if the claim has "some merit in fact and law." Parham, 126 F.3d at 457; see also Bragg v. Agarwal, 2009 U.S. Dist. LEXIS 109090 (D.N.J. Nov. 23, 2009).

In determining whether to grant a litigant's motion for appointment of pro bono counsel under Section 1915(e)(1), the court must consider the following factors: (1) the plaintiff's ability to present his or her case based on such factors as education, literacy, prior work experience, prior litigation experience, the substantive nature of the claim, and/or the ability to understand English; (2) the complexity of the legal issues involved and the lawyering skills required for an effective presentation of the claim; (3) whether the claims are likely to require extensive discovery or compliance with complex discovery rules; and (4) whether the case is likely to turn on credibility determinations or if expert testimony is necessary. See Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993)). Under Section 1915(e)(1), district courts enjoy broad discretion to request an attorney to represent an indigent civil litigant, see id. at 153, although "Tabron [expressly] repudiated" the notion that "appointment of counsel is warranted only upon a showing of special circumstances indicating the likelihood of substantial prejudice to plaintiff resulting from plaintiff's probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case." Powell v. Symons, 680 F.3d 301, 310 n. 9 (3d Cir. 2012) (quoting Tabron, 6 F.3d at 155) (internal quotation marks omitted). Hence, there is no doubt that, under Section 1915(e)(1), the district court should give a serious and careful consideration to appointing counsel each time it appears that an indigent plaintiff with a claim of arguable merit is incapable of presenting his/her own case. See Tabron, 6 F.3d at 156 ("[T]he district court must consider as a threshold matter the merits of the plaintiff's claim. 'Before the court is justified in exercising its discretion in favor of appointment, it must first appear that the claim has some merit in fact and law'") (quoting, inter alia, Maclin v. Freake, 650 F.2d 885, 887 (7th Cir. 1981), which, in turn, quoted Spears v. United States, 266 F. Supp. 22, 25-26 (S.D.W. Va. 1967)).

1. Prohibition Against Counsel's Filing Frivolous Claims

Under Tabron, the presence of a potentially meritorious claim is a threshold requirement for appointment of counsel. See Tabron, 6 F.3d at 156; Maclin, 650 F.2d at 887; Spears, 266 F. Supp. At 25-26; accord Parham, 126 F.3d at 457 (appointment of counsel is warranted only if the pleading contains "some merit in fact and law"). This gateway requirement is closely intertwined with the prohibition on appointed counsel's maintaining frivolous claims. "Under Anders [v. California, 386 U.S. 738 (1967)], if court-appointed 'counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.'" United States v. Parker, 2012 U.S. App. LEXIS 14525, at *4 (3d Cir. July 16, 2012) (quoting Anders, 386 U.S. at 744).

2. Appointment of Pro Bono Counsel In Light of Anders Considerations

The Court of Appeals' decision in United States v. Turner, 677 F.3d 570 (3d Cir. 2012)*fn17 is important for the purposes of the case at bar, since Turner drew an important legal-ethics-based perimeter on the issue of pro bono appointment.*fn18 Indeed, it appears self-evident that no court shall appoint a litigant pro bono counsel if such counsel, by complying with the mandate of such pro bono appointment, would necessarily violate the rules of ethics.

All lawyers [practicing in the State of New Jersey] obligate themselves to . . . abide by the Rules of Professional Conduct adopted by the Supreme Court of New Jersey. Those who violate these standards . . . are subject to discipline . . . .

In re Telfair, 745 F. Supp. 2d 536, 563-64 (D.N.J. 2010) (quoting the Office of Attorney Ethics ("OAE") website at >, original brackets removed).*fn19

Thus, while on one hand, a lawyer is obligated to represent his/her client zealously, see RPC-ABA, preamble, parts (2) and (4) ("As a representative of clients, . . . a lawyer [must] zealously assert[] the client's position under the rules of the adversary system"); see also RPC-ABA, D.R. 1.3, comments 1 and 3 ("A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf"), a lawyer cannot present to a court any facially meritless claims. Indeed, the RPC-ABA and State's Rules of Professional Conduct strongly stress this very point:

A lawyer shall provide competent representation to a client. . . . A lawyer must . . . act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. . . . A lawyer shall not . . . assert . . . an issue . . . unless there is a basis in law and fact for doing so that is not frivolous . . . . The advocate has a duty . . . not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. . . .

What is required of lawyers . . . is that they inform themselves about the facts of their clients' cases and the applicable law and determine [whether] they can make good faith arguments in support of their clients' positions. . . . The [lawyer's] action is frivolous . . . if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument . . . . A lawyer shall not knowingly . . . make a false statement of fact or law . . . .

RPC-ABA, D.R. Nos. 1.1, 1.2(a), 2.1, 3.1, 3.3 (a)(1) and comments 1 and 2 to D.R. 3.1; accord > (reflecting OAE guidance to litigants that their lawyers' "disagreement about how a case should be handled - or should have been handled - does not constitute unethical conduct, even if the outcome of the case is disappointing [for the lawyer's client. Indeed, t]here [might be] situations that a client may find most annoying . . . that [would] not constitute unethical conduct. An example would be the lawyer's failure to consult with the client prior to writing every letter or prior to filing every document in the client's case"). In light of the foregoing, including the holding of Turner, it appears that appointment of pro bono counsel for the purposes of counsel's filing either a motion brief or even a pleading (be it an original or amended) on behalf of his/her indigent client would be wholly inappropriate unless the appointing court can make, with a sufficient degree of certainty, a determination that the indigent litigant seeking pro bono counsel appointment actually has a claim of arguable merit.

C. Rule 17 Considerations

While, on its face, Fed. R. Civ. P. 17(c)(2) does not make any express references to appointment of pro bono counsel, the Rule is nonetheless highly pertinent to the Court's analysis. Rule 17(c)(2) of the Federal Rules of Civil Procedure provides that:

A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem - or issue another appropriate order - to protect a minor or incompetent person who is unrepresented in an action.

Powell v. Symons, 680 F.3d 301, 303 (3d Cir. 2012) (quoting the Rule; original emphasis removed in part).*fn20 While the Rule expressly authorizes appointment of a guardian ad litem,*fn21 the Rule's reference to "other appropriate orders" allows the courts to resort to other measures, including appointments of conservators,*fn22 jura tertii*fn23 and pro bono counsel.*fn24

While the foregoing observation suggests certain ties between Rule 17(c) and 28 U.S.C. § 1915(e)(1), Rule 17(c) considerations might differ from those ensuing from the statutory mandate. See McCaslin by McCaslin v. Radcliff, 168 F.R.D. 249, 1996 U.S. Dist. LEXIS 10726 (D. Neb. 1996) (under Rule 17(c), duties of lawyer for the party and duties of guardian ad litem for that party are entirely different, since it is not a function of the guardian ad litem to serve as lawyer, and vice-versa), aff'd without op. sub nom, McCaslin v County of York, 141 F.3d 1169, reported in, 1998 U.S. App. LEXIS 3227 (8th Cir. 1998). Moreover, the "life-span" of a guardian ad litem appointment and a pro bono counsel appointment, even if for the same litigant, might differ too, since certain actions by the litigant might bring to an end the pro bono appointment but leave the guardian ad litem appointment wholly unaffected.*fn25 Hence, a Rule 17(c) appointment of a single representative who is a legal counsel could yield a scenario where such representative, being obligated to effectively wear "two hats" by acting as both a guardian ad litem and pro bono counsel, might find himself/herself caught in a limbo, being either unable to continue wearing both these hats (if, e.g., this representative becomes conflicted in his/her capacity as a lawyer after the client sues the lawyer for refusal to press frivolous claims) or withdrawing from wearing both of them (since this representative would be conflicted in his/her capacity as a guardian ad litem). Cf. Robert B. Fleming & Rebecca C. Morgan, Lawyers' Ethical Dilemmas: A "Normal" Relationship When Representing Demented Clients and Their Families, 35 Ga. L. Rev. 735, 740 (2001) ("[In the context of] an incapacity proceeding, the lawyer's duty is to protect the client's . . . rights, to advise the client . . . to the extent that the client can understand such explanations . . . and to evaluate the [conduct of the] guardian"); Gale v. Wagg, 140 F. Supp. 6 (D. Mich. 1956) (since any appointed Rule 17(c) guardian/counsel would be unable to foster facially meritless claims desired by an incompetent client, it is the court's obligation to dismiss the pleading without any appointment because "[t]he appointment of a guardian[/counsel] would merely prolong the agony" of meritless litigation).

1. Due Process Requirements

Federal Rule of Civil Procedure 17(a) provides that "every action shall be prosecuted in the name of the real party in interest." Fed. R. Civ. P. 17(a). Importantly, "[a] guardian ad litem [or any other appointee obtaining his/her mandate under Rule 17(c)] is a nominal party only; the ward is the real party in interest." Charles Alan Wright et al., Federal Practice and Procedure § 1548, at 373-74 (2d ed. 1990). Because a litigant, being the real party in interest, possesses liberty interests in avoiding the stigma of being found incompetent, see Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971), and in retaining personal control over the litigation, Due Process Clause of the Fifth Amendment limits the district court's discretion with respect to appointing a guardian ad litem. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976); accord Thomas v. Humfield, 916 F.2d 1032, 1033-34 (5th Cir. 1990). To determine the amount of process due, the district court must weigh: (a) the private interest affected by the official action; (b) the risk of an erroneous deprivation of that interest through the procedures used, and the probable value of additional or different procedural safeguards; and (c) the government's interest. See, e.g., Abdullah v. I.N.S., 184 F.3d 158, 164 (2d Cir. 1999) (citing Mathews, 424 U.S. at 334-35); see also Gilbert v. Homar, 520 U.S. 924, 931-32 (1997). Furthermore, the district court must consider these three factors while bearing in mind the particular context of the decision to appoint a guardian ad litem. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972) ("Due process is flexible and calls for such procedural protections as the particular situation demands"). For instance, a formal evidentiary hearing before appointing a guardian ad litem is not a mandatory feature of Rule 17 analysis,*fn26 especially in light of "the availability of post-appointment review and because of [the litigant's] questionable competence at the time the decision [directing a Rule 17(c) appointee] was made." Neilson v. Colgate-Palmolive Co., 199 F.3d at 651-52.*fn27

2. Guidance Provided in Powell v. Symons

A number of Rule 17(c) issues were addressed by the Court of Appeals in its recent Powell decision, which adopted the standard set forth in a Second Circuit case, Ferrelli v. River Manor Health Care Center, 323 F.3d 196, 201 (2d Cir.2003). At the outset, the Powell court cautioned that "a district court need not inquire sua sponte into a pro se plaintiff's mental competence based on a litigant's bizarre behavior alone, even if such behavior may suggest mental incapacity," Powell, 680 F.3d at 307,*fn28 and a Rule 17(c) analysis might be warranted only if "there is verifiable evidence of incompetence" such as a public agency's determination indicating that the party had been adjudicated incompetent, or if the court received verifiable evidence from a mental health professional demonstrating that the party is being or has been treated for mental illness of the type that would render him or her legally incompetent.*fn29 Id. Hence, the holding of Powell might be read as suggesting that a competency determination must be made if there is evidence of the litigant's diagnosis of severe mental illness or presence of certain kinds of treatment for severe mental illness.*fn30 See id.; cf. Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005) (finding abuse of discretion in failure to make a competency determination when a litigant indicated he could not understand court instructions and submitted letter from a psychiatrist stating that the litigant was schizophrenic).

Powell also provided district courts with important guidance as to when, within the life of a case, a Rule 17(c) review must be conducted. Specifically, the Court of Appeals explained that, once the [court's] duty of [Ruly 17(c)] inquiry is satisfied, [the] court may not weigh the merits of [the litigant's] claims . . . . Cf. Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130, 134 (2d Cir.2009) (citing Gardner, 874 F.2d at 141) ("Because [the plaintiff, a severely mentally retarded teenager] was without a representative when the court dismissed her claims, and was otherwise unprotected, the court was without authority to reach the merits of those claims"); cf. also Sam M. ex rel. Elliott v. Carcieri, 608 F.3d 77, 94 n.15 (1st Cir. 2010) (citing Adelman v. Graves, 747 F.2d 986, 989 (5th Cir. 1984), for the proposition that "the district court improperly dismissed the case without first determining whether the incompetent's interests were adequately represented).

Powell, 680 at 307-08 (footnote omitted).*fn31

This guidance suggests that a judicial sua sponte screening of the challenges raised by a litigant whose diagnosis of severe mental illness (or whose current treatment for a severe mental illness) is verifiably known to the court would run afoul of the protections of Rule 17(c). See id.

D. Supplemental Pleading Providing a More Definitive Statement

It is axiomatic that, under Rule 8(a)(2) of Federal Rules of Civil Procedure, a civil complaint must state sufficient factual heft to give defendant fair notice of what plaintiff's claim are based on. See Ashcroft v. Iqbal, 129 S. Ct. 1937. This "notice pleading" standard was adopted to focus litigation on merits of claim and, with limited exceptions, applies to all civil actions, which adjudication relies on liberal discovery rules and summary judgment motions for the purpose of defining disputed facts and disposing of meritless claims. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). However, "[i]f a pleading . . . is so vague or ambiguous that [the responding] party cannot reasonably be required to frame a responsive pleading, [the responding party] may move for a more definite statement" under Fed. R. Civ. P. 12(e) which is designed to strike at unintelligibility rather than want of detail.*fn32 See, e.g., CMAX, Inc. v. Hall, 290 F.2d 736 (9th Cir. 1959); Robinson v. Penn Central, 336 F. Supp. 658 (E.D. Pa. 1971); Garza v. Chicago Health Clubs, Inc., 329 F. Supp. 936 (N.D. Ill.1971); Royal Indemnity Co. v. City of Erie, 326 F. Supp. 571 (W.D. Pa. 1971); Fairmont Foods Co. v. Manganello, 301 F. Supp. 832 (S.D.N.Y. 1969). Although, as a typical scenario, the protections of Rule 12(e) are resorted to by responding parties making appropriate motions to the presiding tribunals, district courts occasionally resorted to Rule 12(e) sua sponte. For instance, in Elliott v. Perez, 751 F.2d 1472, 1482 (5th Cir. 1985), the Fifth Circuit pointed out that the district court, when it finds that the complaint is not sufficient to permit a proper adjudication of the matter of immunity has the power, sua sponte, require a more definite statement under Rule 12(e). Accord De Witt v. Pail, 366 F.2d 682, 685 (9th Cir. 1966) ("Failure, in an initial complaint, to set forth the claim by means of a short and plain statement, as required by Rule 8(a)(2), is not a ground for dismissal of an action with prejudice, since there are procedures available for correcting a vague or prolix complaint. Among such available procedures are those provided for in Rule 12(e) . . . .") (internal citations omitted). Moreover, a sua sponte judicial directive for a more definite statement might be carefully tailored to the needs of each particular case and limited solely to assertion of the relevant factual matter, without fostering a legal argument. Accord In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 310 (3d Cir. 2010) (discussing with approval district court's order instructing plaintiffs to file, in each of their two clusters of consolidated multi-state litigation cases, a so-called "supplemental statement of particularity" stating merely the relevant facts of their claims in a fashion largely analogous to that employed in the now-abolished tool of "bill of particulars"); cf. Copeland v. Livingston, 464 F. App'x 326, 328, n.1 (5th Cir. 2012) (discussing so-called Spears hearing, which is a measure adopted within the Fifth Circuit under Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), and elaborated upon in Eason v. Holt, 73 F.3d 600 (5th Cir. 1996), for the purpose of determining the facts of plaintiff's challenges); Leamer v. Fauver, Civ. Action No. 95-5105 (GEB) (D.N.J.), Docket Entry No. 172 (directing an individual, who was held in confinement due to the workings of the statutory provision which was among the bases for promulgation of the Sexually Violent Predator Act, to file a supplement to his original and amended pleading with the goal of obtaining the exact facts of the individual's challenges).

In light of the foregoing, reading jointly the mandates of 28 U.S.C. § 1915(e)(1), Rules 12(e) and 17(c), the holding in Anders v. California, 386 U.S. 738, the due process concerns addressed in Wisconsin v. Constantineau, 400 U.S. 433, and Mathews v. Eldridge, 424 U.S. 319, and the guidance provided Powell v. Symons, 680 F.3d 301, and United States v. Turner, 677 F.3d 570, this Court concludes that a district judge -- if presented with a scenario where there exists evidence of a litigant's current diagnosis of severe mental illness (or current treatment for severe mental illness) -- could direct, upon safeguarding the litigant's due process rights, an appointment of pro bono counsel*fn33 for the limited purpose of filing a "supplemental statement of particularity" that would elaborate on the facts asserted in the litigant's original pleading but without making a legal argument. Such filing would allow the court to: (a) liberally construe the facts asserted in "supplemental statement of particularity," as if these facts were alleged by a pro se litigant; and (b) upon screening these factual assertions pursuant to the standard of Rule 8, as clarified in Iqbal, dismiss all meritless challenges (if any) sua sponte and proceed the remaining meritorious challenges (if any) to service, potentially with a directive for permanent appointment of guardian ad litem and/or pro bono counsel.

III. APPLICATION OF LEGAL CONSIDERATIONS TO THE CASES AT BAR

The cluster of cases at bar appears uniquely suited for application of the above-discussed measure. As the "Background" section of this Opinion demonstrates, Plaintiff's many cases seemingly fail to assert any claims of arguable merit. However, in light of Judge Simandle's factual findings made in Bacon v. Burns (that Plaintiff suffers of a severe mental illness and is currently undergoing treatment for this severe mental illness), this Court, out of an abundance of caution, shall not summarily dismiss Plaintiff's challenges. See Fed. R. Civ. P. 17(c); see also Powell v. Symons, 680 F.3d 301. Rather, prior to screening Plaintiff's claims on merits, this Court finds itself obligated to: (a) determine Plaintiff's capacity to be the master of his claims and to litigate the same, see id.; accord Mathews v. Eldridge, 424 U.S. 319; Wisconsin v. Constantineau, 400 U.S. 433; and (b) in the event Plaintiff is found unfit to be the master of his claim, have a pro bono counsel appointed to Plaintiff for the purposes of filing a supplemental statement of particularity in each above-captioned case,*fn34 with the goal of clarifying to this Court solely the facts alleged by Plaintiff, see Anders v. California, 386 U.S. 738; United States v. Turner, 677 F.3d 570, and -- correspondingly -- enabling this Court to screen these facts by liberally construing them as if they were asserted by Plaintiff proceeding pro se. See Erickson v. Pardus, 551 U.S. 89; United States v. Day, 969 F.2d 39.

IV. CONCLUSION

The Court, therefore, being mindful of Plaintiff's due process rights and potential stigma ensuing from a Rule 17(c) finding of incompetence, will direct Plaintiff to show cause as to why he shall remain the master of his claims at this early pleading stage and why no special counsel shall be appointed to file supplemental statements of particularity in each above-captioned action.*fn35 In the event Plaintiff fails to establish to the Court's satisfaction his fitness to be the master of his claims, the Court will deem Plaintiff incompetent within the meaning of Rule 17(c) and will direct the Clerk to appoint a pro bono counsel. Such appointment, initially, will be solely for the purpose of counsel's determination of facts underlying the particular challenges asserted by Plaintiff in each above-captioned action and counsel's filing of supplemental statements of particularity that would allow this Court to screen these matters and, if a factual predicate supporting potentially meritorious claims is detected, proceed to service of process and, if such measure is warranted, direct appointment of permanent pro bono counsel to Plaintiff. Accord Williams v. Ricci, 2011 U.S. Dist. LEXIS 51959.

Correspondingly, the issue of whether Plaintiff shall be appointed pro bono counsel will be reserved at this juncture and until the Court concludes its examination of Plaintiff's response to the order to show cause for the purposes of Rule 17(c) review.

An appropriate Order accompanies this Opinion.*fn36

JOEL A. PISANO United States District Judge


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