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Short v. Great Atlantic & Pacific Tea Co., Inc.

United States District Court, Third Circuit

August 28, 2013

Short
v.
Great Atlantic & Pacific Tea Co., Inc., et al.

LETTER OPINION & ORDER

MICHAEL A. HAMMER. Magistrate Judge.

Dear Litigants:

Presently before the Court is plaintiff's July 26, 2013 application for pro bono counsel under 28 U.S.C. § 1915(e)(1). See Appl. for Pro Bono Counsel, ECF No. 37. For the reasons set forth below, plaintiff's request is denied.

Background

On November 18, 2010, plaintiff filed a Complaint against Great Atlantic & Pacific Tea Company, Inc. and Superfresh Food Markets, Inc., alleging that Superfresh employees "intentionally, maliciously, erroneously, and negligently identified and accused the Plaintiff of armed robbery[, ]" which ultimately led to plaintiff being wrongly convicted. See Complaint, ECF No. 1 ¶¶ 4, 6. Plaintiff served ten years in prison, but his conviction was ultimately reversed. Id . ¶¶ 7-11. Plaintiff sought $15, 000, 00 in compensatory damages and $5, 000, 000 in punitive damages. Id . Plaintiff also applied to proceed in forma pauperis ("IFP"). Id . On June 20, 2011, the Court granted plaintiff's IFP application, but dismissed plaintiff's Complaint without prejudice as the Complaint failed to provide defendants with adequate notice of plaintiff's claims. See Order, ECF No. 2.

Plaintiff's First Amended Complaint was received by the Court on July 25, 2011, see First Amended Complaint, ECF No. 4, but the Complaint was again dismissed without prejudice due to both substantive and procedural deficiencies. See Order, ECF No. 7.

A Second Amended Complaint was filed on March 23, 2012. See Second Amended Complaint, ECF No. 8. On August 20, 2012, plaintiff moved for initial review of the Second Amended Complaint. See Letter, ECF No. 15. On September 4, 2012, the Court dismissed plaintiff's Second Amended Complaint as the document did not constitute a well-pleaded complaint, such that defendants would have been put on notice of claims against them. See Order, ECF No. 17.

A Third Amended Complaint was filed on September 24, 2012. See Third Amended Complaint, ECF No. 18. On March 20, 2013, defendants moved for summary judgment. See Mot. Summ. J., ECF No. 27. Defendants argued a settlement agreement between plaintiff and Pathmark, a subsidiary of defendants, precluded plaintiff from brining suit against them. See id. Plaintiff opposed the motion, arguing that, at the time of settlement, Pathmark was not a subsidiary of defendants. See Opp'n to Mot. Summ. J., ECF Nos. 28, 29. Defendants' motion was denied without prejudice due to defendants' failure to comply with Local Civil Rule 56.1. See Order, ECF No. 30.

A second Motion for Summary Judgment was filed on April 19, 2013, which was substantively similar to defendants' initial motion. See Mot. Summ. J., ECF No. 31. Plaintiff again opposed the motion; his submission included a memorandum of law in opposition with accompanying exhibits. See Opp'n to Mot. Summ. J., ECF No. 32. On May 23, 2013, the Court denied defendants' motion. See Opinion, ECF No. 33; Order, ECF No. 34.

Discussion

In civil cases, neither the Constitution nor any statute gives civil litigants the right to appointed counsel. Parham v. Johnson , 126 F.3d 454, 456-57 (3d Cir. 1997). District courts, however, have broad discretion to determine whether appointment of counsel is appropriate under 28 U.S.C. § 1915(e). Montgomery v. Pinchack , 294 F.3d 492, 498 (3d Cir. 2002) (citing Tabron v. Grace , 6 F.3d 147, 153 (3d Cir. 1993)). Appointment of counsel may be made at any point in the litigation, including sua sponte by the Court. Montgomery , 294 F.3d at 498 (citing Tabron , 6 F.3d at 156).

In the Third Circuit, the Court considers the framework established in Tabron , 6 F.3d at 155-57. Under the Tabron framework, the Court must first assess "whether the claimant's case has some arguable merit in fact and law." Montgomery , 294 F.3d at 499 (citing Tabron , 6 F.3d at 155). If the applicant's claim has some merit, the Court considers the following factors:

(1) the plaintiff's ability to present his or ...

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