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Dippolito v. United States

United States District Court, D. New Jersey, Camden Vicinage

March 11, 2015

FRANK DIPPOLITO, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

MEMORANDUM OPINION AND ORDER [Doc. No. 27]

JOEL SCHNEIDER, Magistrate Judge.

This matter is before the Court on the "Motion to Appoint Pro Bono [Counsel]" ("Motion") [Doc. No. 27] filed by pro se plaintiff, Frank Dippolito. No opposition has been filed. The Court exercises its discretion to decide plaintiff's motion without oral argument. See Fed.R.Civ.P. 78; L. Civ. R. 78.1. For the reasons to be discussed, plaintiff's motion is DENIED.

Background

Plaintiff, a former inmate at the Fort Dix Federal Corrections Institution ("FCI Fort Dix"), seeks the appointment of counsel to represent him in his civil action asserting claims pursuant to 42 U.S.C. § 1983. See Am. Compl. [Doc. No. 13]. Plaintiff commenced this action against the United States, the Federal Bureau of Prisons (FBOP), the U.S. Attorney General, ten FBOP employees, twenty-one FCI Fort Dix employees, the United States Inspector General for FBOP, the American Correctional Association, and the Executive Director of the American Correctional Association on January 10, 2013. Id.

In sum and substance, plaintiff alleges that defendants acted with actual knowledge and deliberate indifference to the safety and health of prisoners at Fort Dix by maintaining "toxic" conditions at the prison. Am. Compl. at 2-3. Specifically, plaintiff alleges that he suffered injury from a variety of deficient conditions at the prison, including asbestos, lead paint, a polluted water supply, exposure to high noise levels from the personal address (PA) system, and fire hazards. Am. Compl. at 12-16. Further, plaintiff alleges that while he "took every opportunity to advise" every government office of the offenses, defendants did not take any action in response. Am. Compl. ¶ 3. Additionally, plaintiff alleges that when he should have been considered for removal to a halfway house in accord with the Second Chance Act of 2007 and requested an interview, the Bureau of Prisons "failed to create the regulations mandated by Congress." Am. Compl. ¶ 4.

On July 14, 2014, defendants James A. Gondles Jr. and the American Correctional Association filed a motion to dismiss plaintiff's complaint [Doc. No. 17], which plaintiff opposed. [Doc. No. 18]. Plaintiff subsequently filed the present motion to appoint pro bono counsel on November 25, 2014. [Doc. No. 27]. On December 3, 2014, defendant Charles E. Samuels, Jr., et al., filed a Motion for Judgment on the Pleadings. [Doc. No. 29]. On February 5, 2015, plaintiff filed a motion to amend his complaint [Doc. No. 40], which the court denied because plaintiff failed to attach a copy of his proposed amended pleading. See Feb. 6, 2015 Order [Doc. No. 41]. Plaintiff subsequently filed a motion for leave to file a second amendment complaint on March 2, 2015. [Doc. No. 42].

Discussion

Plaintiff seeks appointment of legal counsel pursuant to 28 U.S.C. § 1915(e). The court may, pursuant to § 1915(e), request an attorney to represent an indigent plaintiff in a civil action. The statute provides in relevant part that:

(1) [t]he court may request an attorney to represent any person unable to afford counsel. (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-(A) the allegation of poverty is untrue; or (B) the action or appeal-(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

U.S.C. § 1915(e). District courts have broad discretion to request counsel for indigent pro se litigants, but such appointment is a privilege, not a statutory or constitutional right of the litigant. Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011) (citation omitted); Montgomery v. Pinchak, 294 F.2d 492, 498 (3d Cir. 2002); see also Speller v. Ciccero, C.A. No. 13-1258 (KM), 2013 WL 1121377, at *1 (D.N.J. Mar. 12, 2013).

The decision to appoint pro bono counsel involves a two-step analysis. First, a court must determine as a threshold matter whether plaintiff's claim has "some merit in fact and law." Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). If a court finds that the action arguably has merit, it should then consider the following factors (hereafter, the Tabron/Parham factors):

(1) the plaintiff's ability to present his or her own case;
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be necessary and the ability of the plaintiff to ...

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