United States District Court, D. New Jersey
BRIAN R. MARTINOTTI United States District Judge
this Court is a request by Plaintiff Brian Keith Bragg
(“Plaintiff”) to appoint pro bono counsel. (ECF
No. 1 at 15.) Additionally, the Court must sua
sponte screen Plaintiff's Complaint (ECF No. 1)
pursuant to 28 U.S.C. § 1915A and 1915(e)(2)(B). For the
reasons set forth below, Plaintiff's claims against
Defendants in their official capacities are DISMISSED WITHOUT
PREJUDICE, but his claims against Defendants in their
individual capacities shall proceed. Plaintiff's request
for the appointment of counsel is DENIED WITHOUT PREJUDICE.
to the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26,
1996) (the “PLRA”), district courts must review
the complaints in all civil actions in which a prisoner is
proceeding in forma pauperis, see 28 U.S.C.
§ 1915(e)(2)(B), or seeks damages from a state employee,
see 28 U.S.C. § 1915A. The PLRA directs
district courts to sua sponte dismiss any claim that
is frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B); 28 U.S.C. § 1915A. This action is subject
to sua sponte screening for dismissal, pursuant to
28 U.S.C. §§ 1915A and 1915(e)(2)(B), because
Plaintiff has previously been granted in forma
pauperis status and, at the time he filed his complaint,
was a prisoner seeking damages from state employees.
legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
is the same as that for dismissing a complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6).” Schreane
v. Seana, 506 F. App'x 120, 122 (3d Cir. 2012)
(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000)); Mitchell v. Beard, 492 F. App'x
230, 232 (3d Cir. 2012) (discussing 28 U.S.C. §
1997e(c)(1)); Courteau v. United States, 287 F.
App'x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C.
deciding a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), a district court is “required to accept as
true all factual allegations in the complaint and draw all
inferences in the facts alleged in the light most favorable
to the [Plaintiff].” Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). “[A]
complaint attacked by a . . . motion to dismiss does not need
detailed factual allegations.” Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007). However, the
Plaintiff's “obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Id. (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)). A court is “not
bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan, 478 U.S. at 286.
Instead, assuming the factual allegations in the complaint
are true, those “[f]actual allegations must be enough
to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim for relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Iqbal, 556
U.S. at 678. Determining whether the allegations in a
complaint are plausible is a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense. Id. at 679.
“[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.'” Id. (citing Fed.R.Civ.P.
8(a)(2)). Moreover, while pro se pleadings are
liberally construed, “pro se litigants still
must allege sufficient facts in their complaints to support a
claim.” Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 245 (3d Cir. 2013) (citation omitted) (emphasis
seeks to bring claims, pursuant to 42 U.S.C. § 1983,
against Mercer County Sheriff's Deputy Joseph Tuccillo
(“Tucillo”) and various John Doe sheriff's
deputies and Trenton Police officers who were involved in his
arrest (“John Doe Defendants”) (collectively,
“Defendants”). “To establish a claim under
42 U.S.C. § 1983, a plaintiff must demonstrate a
violation of a right protected by the Constitution or laws of
the United States that was committed by a person acting under
the color of state law.” Nicini v. Morra, 212
F.3d 798, 806 (3d Cir. 2000); see also Woodyard v. Cnty.
of Essex, 514 F. App'x 177, 180 (3d Cir. 2013)
(explaining § 1983 provides “private citizens with
a means to redress violations of federal law committed by
state [actors]”). “The first step in evaluating a
§ 1983 claim is to ‘identify the exact contours of
the underlying right said to have been violated' and to
determine ‘whether the plaintiff has alleged a
deprivation of a constitutional right at all.'”
Nicini, 212 F.3d at 806 (quoting County of
Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)).
seeks to bring claims against Defendants for the use of
excessive force in arresting Plaintiff and, with respect to
John Doe Defendants not involved in the alleged use of
excessive force, for failure to intervene. Because this Court
perceives no basis for the dismissal of the claims against
Defendants in their individual capacities, those claims shall
however, also seeks to raise claims against Defendants, all
of whom are either employees of the Mercer County
Sheriff's Department or the Trenton Police, in their
official capacities. A § 1983 claim against an official
in his official capacity represents merely another means by
which an individual may bring a claim against the
official's office and in turn the entity of which he is
an agent. Monell v. Dep't of Soc. Servs., 436
U.S. 658, 690 n.55 (1978). To the extent Plaintiff brings
claims against Defendants in their official capacities, he
is, in effect, bringing claims against the City of Trenton
and/or Mercer County. See Miller v. Brady, 639 F.
App'x 827, 832 (3d Cir. 2016) (An action against
municipal police officers in their official capacities is, in
effect, an action against the municipality.) A municipality
or county, however, may not be held vicariously liable under
§ 1983 for the actions of its employees and instead must
itself have direct or personal involvement in the alleged
wrong. See Iqbal, 556 U.S. at 675-76; see also
Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir.
1988) (a “defendant in a civil rights action must have
personal involvement in the alleged wrongs; liability cannot
be predicated solely on the operation of respondeat
superior”). To state a § 1983 claim against
an official in his official capacity, a plaintiff must
generally identify a policy, ordinance, or practice of the
official's employer, which caused or resulted in the
alleged constitutional violations. See Los Angeles Cnty.
v. Humphries, 562 U.S. 29, 35-36 (2010); Monell v.
New York City Dep't of Social Servs., 436 U.S. 658,
690-91 (1978); Miller, 639 F. App'x at 833.
the Complaint identifies many actions by Defendants
themselves which, if true, would be sufficient to state a
claim for excessive force or failure to intervene, the only
allegations made by Plaintiff which could be generously
construed as an attempt to make out a claim against Trenton
or Mercer County is Plaintiff's statement that the
individually named Defendants have a “policy and
practice of using excessive force against arrestees.”
(ECF No. 1 at 10-11.) Plaintiff identifies no policy or
practice which resulted in his alleged mistreatment by the
various officers, instead he provides only a conclusory
allegation as to the existence of a policy or practice.
Plaintiff likewise fails to attribute this policy or practice
to the City of Trenton or Mercer County, as opposed to the
Defendants individually, or to plead any facts connecting
these municipalities to the actions of the named Defendants.
Plaintiff has, therefore, provided at best only a conclusory
allegation as to the employers of the various Defendants, and
provides no basis for the employers' liability other than
an impermissible respondeat superior theory of
vicarious liability. Because Plaintiff has failed to provide
a valid basis for municipal liability, his claims against
Defendants in their official capacities are dismissed without
prejudice. See Humphries, 562 U.S. at 35-36 (2010);
Monell, 436 U.S. at 690-91; Miller, 639 F.
App'x at 833.
in the Complaint, Plaintiff requests that the Court appoint
pro bono counsel for him. (ECF No. 1 at 15.) In support of
this request, Plaintiff states that he cannot afford private
counsel, has limited knowledge of the law and limited law
library access, has only a sixth grade education, and takes
medication for several mental health issues such as bipolar
disorder. (Id.) Plaintiffs in civil suits are not
entitled to the appointment of counsel, but district courts
retain wide discretion to appoint pro bono counsel where the
court deems such an appointment necessary. Montgomery v.
Pinchak, 294 F.3d 492, 498 (3d Cir. 2002); see also
Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). In
exercising that discretion, courts must first determine
whether the plaintiff is able to afford a private attorney
and whether the plaintiff's claims have merit.
Tabron, 6 F.3d at 155-57; Cuevas v. United
States, 422 F. App'x 142, 144-45 (3d Cir. 2011).
Where the plaintiff is indigent and has put forth arguably
meritorious claims, courts look to numerous factors to
determine whether counsel should be appointed, including the
complexity of the legal issues presented, the degree to which
factual investigation will be necessary and the
plaintiff's ability to conduct such investigation, the
litigant's ability to obtain counsel on his own behalf,
the extent to which the case turns on credibility, and
whether expert testimony will likely be required.
Tabron, 6 F.3d at 155-57; Cuevas, 422 F.
App'x at 144-45.
Plaintiff has established his indigence and pled arguably
meritorious claims, this Court finds that the appointment of
counsel is not warranted at this time. This Court reaches
this conclusion, because the Complaint indicates Plaintiff is
able to put forth his claims in a clear fashion,
Plaintiff's claims are not overly complex, it appears
that only limited factual discovery will be necessary in this
matter, and it is unlikely that any expert testimony will be
necessary. While the Court acknowledges Plaintiff may be
unable to obtain private counsel and that this case could
hinge largely on credibility determinations, this Court