United States District Court, D. New Jersey
TROY R. ROSE JR., Plaintiff,
OPINION AND ORDER
B. CLARK, III United States Magistrate Judge.
MATTER comes before the Court on a Motion by pro se
Troy R. Rose, Jr., for the appointment of pro bono
counsel pursuant to 28 U.S.C. § 1915(e). [Dkt. No. 7].
For the reasons set forth below, Plaintiff's Motion for
the appointment of pro bono counsel is DENIED.
filed his Complaint on May 27, 2016, alleging claims of
negligence and assault against certain correction officers at
the East Jersey State Prison. [Dkt. No. 1]. Specifically,
Plaintiff claims that a correction officer incorrectly
entered his cell, utilized mace against him, and caused
injuries to his neck and knee. [Dkt. No. 1]. On June 13,
2016, Plaintiff filed an application to proceed in forma
pauperis, which the Court granted on June 21,
2016. [Dkt. Nos. 3, 4]. Plaintiff filed the present
Motion for Pro Bono Counsel on September 6, 2016.
[Dkt. No. 7].
seeks the appointment of counsel under 28 U.S.C. §
1915(e), which provides that “[t]he court may request
an attorney to represent any person unable to afford
counsel.” The appointment of counsel for a civil case
is a privilege, not a statutory or constitutional right.
Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir.
2011). The decision to appoint pro bono counsel involves a
two-step analysis. First, a court must determine, as a
threshold matter, whether a 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:
(1) the plaintiff's ability to present his or her own
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue such
(4) the amount a case is likely to turn on credibility
(5) whether the case will require the testimony of expert
(6) whether the plaintiff can attain and afford counsel on
his own behalf.
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997)
(citing Tabron, 6 F.3d at 155-56, 157 n.5). This
list is not exhaustive, but rather provides guideposts for
the Court. Montgomery v. Pinchak, 294 F.3d 492, 499
(3d Cir. 2002) (additional citations omitted). A court's
decision to appoint counsel “must be made on a
case-by-case basis.” Tabron, 6 F.3d at 157-58.
Additionally, the Third Circuit has stated that “courts
should exercise care in appointing counsel because volunteer
lawyer time is a precious commodity and should not be wasted
on frivolous cases.” Montgomery, 294 F.3d 499
(citing Parham, 126 F.3d at 458).
initial matter and regardless of whether or not
Plaintiff's claims have merit, the factual and legal
issues “have not been tested or developed by the
general course of litigation, making [a number of factors] of
Parham's test particularly difficult to
evaluate.” See Chatterjee v. Philadelphia
Federation of Teachers, 2000 WL 1022979 at *1 (E.D.Pa.
July 18, 2000) (stating that unlike Parham, which
concerned a directed verdict ruling, and Tabron,
which involved summary judgment adjudication, plaintiff's
claims asserted in the complaint and motions “have
barely been articulated” and have a distinctive
procedural posture). With respect to the Tabron
factors, Plaintiff has not demonstrated at this stage of the
proceeding that pro bono counsel is warranted.
filings with the Court thus far reflect literacy and the
ability to reference relevant legal authority. For example,
without the assistance of counsel, Plaintiff has filed a
Complaint, an application for in forma pauperis
status, and the present motion for the appointment of pro
bono counsel. These filings themselves demonstrate that
Plaintiff is able to present his case. Plaintiff claims that
he needs counsel because “D.O.C.'s Correctional
Officers abuse there [sic] power and a lawyer is better
equipt [sic] to argue that on an [sic] legal aspect . .
.” A review of Plaintiff's Complaint proves the
contrary. He has adequately set forth the facts of the
incident forming the basis of this lawsuit and the injuries
he allegedly sustained.
the claims presented by Plaintiff do not appear to be complex
in nature. Plaintiff's claims that he was negligently
assaulted by a correctional officer are not novel. And the
degree to which factual investigations will be necessary, the
extent to which the case is likely to turn on credibility
determinations, and ...